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OCI Card Issued To Foreigner On Spouse Basis Liable To Be Cancelled Upon Dissolution Of Marriage; Bombay HC Rejects Canadian Woman's Plea

Nitish Kashyap
31 Oct 2020 7:18 AM GMT
OCI Card Issued To Foreigner On Spouse Basis Liable To Be Cancelled Upon Dissolution Of Marriage; Bombay HC Rejects Canadian Womans Plea
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The Bombay High Court earlier this week held that Overseas Citizen of India (OCI) card issued to someone of foreign origin is liable to be cancelled upon dissolution of marriage by a competent court. Court rejected a writ petition filed by LeeAnne Singh, a Canadian citizen who challenged a notice issued by the Ministry of Home Affairs asking her to surrender her OCI card after dissolution of marriage.

Division bench of Justice Nitin Jamdar and Justice Milind Jadhav observed-

"Provisions of Section 7 of the Act casts a duty on the officers of Respondent No.1 to take necessary steps regarding the OCI card issued on spouse basis, if the marriage is dissolved by the competent Court of law. Therefore the notices/orders issued by Respondent No.1 (MHA) cannot be said to be illegal, nor the Respondent No.1 can be restrained from giving effect to the law."

Petitioner is a citizen of Canada and got married to Arunoday Singh, who is an Indian citizen. Marriage was solemnized at Bhopal on December 13, 2016. On May 10, 2019, Arunoday filed a petition for divorce in the Family Court at Bhopal under Section 27 of the Special Marriage Act, 1954. Thereafter, the petitioner applied for restitution of conjugal rights in Family Court at Bandra, Mumbai. The petitioner also filed a transfer petition in the Supreme Court for transferring the case from Family Court, Bhopal to Family Court, Bandra.

On December 18, 2019, the Family Court, Bhopal allowed the divorce petition filed by petitioner's husband and dissolved the marriage. On January 17, 2020, the petitioner received a notice from the Ministry of Home Affairs, Foreigners Division, OCI Section stating that since her marriage is dissolved, her OCI card will be surrendered.

On January 24, the Family Court, Bandra passed an order of status-quo about the flat at Mumbai and embryos preserved in a cryopreservation centre. Thereafter the MHA issued notices to the petitioner to surrender OCI card on February 26, June 9, July 21 and August 28. Petitioner challenged the communications directing her to surrender the OCI card.

Advocate Subhradeep Banerjee appeared on behalf of the petitioner, Advocate DP Singh for MHA and Advocate Dhruti Kapadia for the respondent husband.

After hearing all submissions, Court examined the statutory provisions concerning OCI cards contained in section 7A(1)(d) of the Citizenship Amendment Act, 2015. The bench observed-

"Thus the Central Government empowered to register a spouse of foreign origin of a citizen of India as an Overseas Citizen of India Cardholder upon conditions as laid down. The OCI card holders, though remain citizens of their country enjoy certain privileges such as multiple entry Visa, exemption from Foreigners registrations, parity with Non Resident Indians in some aspects."

The Citizenship Act, 1955 was amended by the Citizenship (Amendment) Act, 2015. Section 7D(f) thereof deals with cancellation of registration as Overseas Citizen of India Cardholder. Section 7D (f) reads:

7D. The Central Government may, by order, cancel the registration granted under sub-section (1) of section 7A, if it is satisfied that: …..

(f) the marriage of an Overseas Citizen of India Cardholder, who has obtained such Card under clause (d) of sub-section (1) of section 7A,—

(i) has been dissolved by a competent court of law or otherwise; or

(ii) has not been dissolved but, during the subsistence of such marriage, he has solemnized marriage with any other person.

Therefore OCI card granted under Section 7A(1)(d) is liable to be cancelled upon dissolution of marriage by the competent court. The special privileges can then be withdrawn, Court noted.

Rejecting the petitioner's contention that she has filed a Family Court Appeal against the order granting the divorce, Court said -

"No provision of law has been shown to us which states that if an appeal is filed challenging the decree of divorce, operation of Section 7D(f)(i) is suspended. The decree for divorce passed by the Family Court, Bhopal is not stayed or set aside by the High Court where the appeal is stated to have been filed.

As regards the order of status-quo passed by the Family Court at Bandra is concerned, it relates only to the residential premises and the embryos. This order, therefore, has no bearing on the impugned orders issued by Respondent No.1 under the Citizenship Act."

Finally, rejecting the writ petition, Court concluded-

"Provisions of Section 7 of the Act casts a duty on the officers of Respondent No.1 to take necessary steps regarding the OCI card issued on spouse basis, if the marriage is dissolved by the competent Court of law. Therefore the notices/orders issued by Respondent No.1 cannot be said to be illegal, nor the Respondent No.1 can be restrained from giving effect to the law."

[Read Judgment]



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