Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Such special privilege of an OCI Card may be withdrawn under Section 7D(f) which reads thus: “7D.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.”
11. The relevant clause of the checklist issued for verification of applications seeking OCI category card which was part of the record before the High Court reads thus:- 826 “In case of marriage to Indian national, registered marriage certificate and Spouse valid Indian Passport photo page and Address page (holding Indian citizenship. (Marriage certificates issued Outside India is to be affixed with Apostille or endorsed by the concerned Indian Mission abroad). On the day of submission of application the couple must present. (only those whose marriage is registered and has subsisted for a continuous period of not lessen two years are eligible for OCI on the basis of marriage to Indian).”
12. The above would indicate that on the day of submission of application, the couple must be present. For appreciating the requirement of physical/virtual presence projected by the learned ASG, we have also perused the Visa Manual issued by the Ministry of Home Affairs and the relevant Clauses in Chapter 21 of the Visa Manual have been considered.
13. Para 21.25(vi) of the Visa Manual provides thus: “With a view to curb practice of entering into marriage of convenience just to obtain OCI cards by foreign nationals, a mandatory verification step of personal interview (either physical or through video conference) of all OCI applicants who apply for registration as OCI cardholder under section 7A(1)(d) of Citizenship Act, 1955 (i.e. spouse basis) has been introduced. This personal interview shall be conducted by the Indian Mission/Post/FRRO concerned at the time of document verification stage itself and the OCI application on spouse basis shall be acknowledged on the online system only after the personal interview has been held and the Indian Mission/Post/FRRO concerned have satisfied themselves about the suitability of the applicant for the registration as OCI cardholder. A report on the personal interview along with recommendation of the Indian Mission/Post/FRRO concerned shall also be uploaded on the online system. During such personal interview, the Indian Mission/ Post/ FRRO may put random questions to the foreign applicant and his/her spouse separately to elicit information which may help in ascertaining the [2024] 8 S.C.R. Union of India v. Bahareh Bakshi genuineness of the marital status of the applicant. The information provided during the personal interview maybe tallied with the information, if any, provided in the application form with reference to similar questions”. [emphasis supplied]
14. Other provisions of the Visa Manual were also brought to our notice which, inter alia, provided that as a further step, a declaration should be given by the husband that in case of death or divorce, he would surrender the OCI Card to the authorities. As noted above, during the personal interview of the applicant, the concerned Officer may put random questions to the foreign applicant and his/her spouse separately, to elicit information which may help in ascertaining the genuineness of the marital status of the applicant. This suggests that the presence of the spouse of the applicant either physically or through the virtual mode is mandatory for effective consideration of the application for an OCI Card.
15. The Learned Counsel for the Respondent argued that the Visa Manual or even the checklist is only a delegated legislation and there is no such condition in Section 7A(d) of the Citizenship Act,1955 mandating an interview. We are disinclined to accept this submission as Section 7A(1) specifically notes that the registration of OCI Card by the Central Government is ‘subject to such conditions, restrictions and manner as may be prescribed’. Therefore, the Act clearly allows for supplementary procedures, such as an interview as specified in the Visa Manual as well as the Checklist. In the absence of any challenge to the visa manual or the checklist, and ignoring the procedure in place, the High Court in the impugned judgment erred in granting the relief of dispensing with the requirement of physical/ virtual presence of the spouse. This was done on the basis that there are other modes by which the concerned authority can satisfy themselves on the genuineness of the application.
16. If the above procedure dispensing with the presence of the spouse for considering the respondent’s application is permitted to be adopted, it will firstly be a departure from the notified procedure. Moreover, the entire burden of verification would completely shift to the authorities. For the OCI card, it is for the applicant to satisfy the authorities in the manner prescribed, on the genuineness of her 828 application. In any case, the Division Bench was unjustified in holding that mandating the physical presence of the husband is arbitrary. In the absence of any challenge to the provisions of the Citizenship Act 1955, the Visa Manual, administrative instructions, or the checklist, such observations of the High Court were unmerited. In this regard, the prayer in the writ petition may be noted as under: “a. issue, a Writ of Mandamus or any other appropriate Writ directing the Respondent not to insist for the presence of husband of the Petitioner, for granting Overseas Citizen of India and/or b. Issue a Writ of Mandamus or any other appropriate Writ directing the Respondent to issue the Overseas Citizenship’. of India card to the Petitioner: and/or Any other relief that the Hon’ble Court may deem fit in the facts and circumstances of the instant case.”
17. Having considered the process for verifying the genuineness, we are of the view that the direction issued in the impugned judgment to dispense with the presence of the applicant’s spouse, has no legal basis. Moreover, apart from the physical/virtual presence of the spouse other conditions are also to be satisfied by an applicant as is provided under the Citizenship Act 1955, the checklist and the Visa Manual for which even a declaration by the husband may be necessary.
18. In consequence of our above discussion, the impugned judgments dated 22.07.2021 and 25.03.2022 of the learned Single Judge and the learned Division Bench of the High Court dispensing with the physical presence of the respondent’s spouse during the process of interview for consideration of her application for OCI Card are found to be unsustainable and are set aside.
19. The Counsel for the Respondent attempted to make the submission that this is a peculiar case where the marriage is subsisting and the wife has been abandoned. In a case of estrangement, the applicant would fall under the category of a ‘special circumstance’ as the rules are silent for such a category. In this regard, Section 7A(3) of the Citizenship Act,1955 was brought to our notice: [2024] 8 S.C.R. Union of India v. Bahareh Bakshi “(3) Notwithstanding anything contained in sub-section (1), the Central Government may, if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder.”
20. Noticing this special provision, we may observe that the present order will not come in the way of the Central Government to consider if any special circumstances exists for consideration of the respondent’s application and it will then be open for the respondent to make good her case. However, such discretion is entirely left to the Central Government and we are not expressing any opinion on whether the respondent deserves such consideration or not.
21. With the above, the appeals are allowed by interfering with the impugned judgments. Pending application(s), if any, stand closed. Result of the case: Appeals allowed. †Headnotes prepared by: Nidhi Jain