UNION OF INDIAversusBAHAREH BAKSHI

             [2024] 8 S.C.R. 820 : 2024 INSC 646

                           Union of India
                                v.
                          Bahareh Bakshi
               (Civil Appeal No(S).4887-4888/2024)
                            22 August 2024
[Hrishikesh Roy, Sudhanshu Dhulia and S.V.N. Bhatti, JJ.]

                       Issue for Consideration
   Issue arose as regards to the presence of the estranged husband,
   if mandatory to process an application by the wife-foreign spouse
   of a citizen of India for overseas Citizen of India Card, u/s.7-A of
   the Citizenship Act, 1955.

                              Headnotes†
   Citizenship Act,1955 – s.7A(1) – Registration of Overseas
   Citizen of India Cardholder – Application for Overseas
   Citizen of India (OCI) Card by wife-foreign spouse of a citizen
   of India – Presence of the estranged husband, if mandatory
   to process the application u/s.7A:
   Held: 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 – Central Government
   is empowered to register the foreign spouse of a citizen of India
   as an OCI holder subject to such conditions, restrictions and
   manner as may be prescribed – Prior security clearance’ by the
   competent authority for eligibility is also required – Act
   clearly allows for supplementary procedures, such as an
   personal interview of the foreign applicant and his/her spouse
   separately 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
   erred in granting the relief of dispensing with the requirement of
   physical/virtual presence of the spouse as also was unjustified
   in holding that mandating the physical presence of the husband
   is arbitrary – Having considered the process for verifying the
   genuineness, 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
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                     Union of India v. Bahareh Bakshi


     as is provided under the Act, the checklist and the Visa Manual
     for which even a declaration by the husband may be necessary –
     Impugned judgments of the Single Judge and the Division Bench
     of the High Court unsustainable and set aside. [Paras 14-18]

                                 List of Acts
     Citizenship Act, 1955; Visa Manual, 2021; Code of Criminal
     Procedure, 1973.

                              List of Keywords
     Overseas Citizen of India; OCI holder; Application for OCI Card; Prior
     security clearance; Checklist issued for verification of applications
     seeking OCI category card; Presence of couple; Presence of the
     estranged husband; Personal interview; Genuineness of the marital
     status; Supplementary procedures; Interview; Visa Manual as well
     as Checklist; Dispensing with the requirement of physical/virtual
     presence of the spouse; Special circumstance.

                             Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4887-4888
     of 2024
     From the Judgment and Order dated 25.03.2022 and 22.07.2021 of
     the High Court of Delhi at New Delhi in LPA NO. 225 of 2022 and
     WP(C) No. 10807 of 2020 respectively
                         Appearances for Parties
     Mrs. Aishwarya Bhati, A.S.G., B K Satija, Merusagar Samantaray,
     Mrs. Savita Singh, Ishaan Sharma, Parantap Singh, Mriyank Pathak,
     Arvind Kumar Sharma, Akshja Singh, Advs. for the Appellant.
     Ankur Mahindro, Rohan Taneja, Mohit Dagar, Aditya Kapur, Soumil
     Gonsalves, Ankush Satija, Rohit Bishnoi, Ms. Vaishali S, Ms.
     Shubhangi Jain, Ms. Sugandha Anand, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                                 Judgment
1.   Heard Ms. Aishwarya Bhati, learned Additional Solicitor General
     appearing for the appellant – Union of India. Also heard Mr. Ankur
     Mahindro, learned counsel appearing for the respondent.
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2.     The consideration to be made in this matter is whether the presence
       of the estranged husband is mandatory to process an application
       for Overseas Citizen of India (OCI) Card, under Section 7-A of
       the Citizenship Act, 1955. The respondent had filed the WP(C)
       No.10807/2020 in the High Court of Delhi for dispensing with the
       presence of the husband of the respondent. The learned Single
       Judge dispensed with the presence of the husband of respondent
       and this view was affirmed by the learned Division Bench under the
       impugned order dated 25.03.2022. Hence the Civil Appeal at the
       instance of Union of India.
3.     In the Writ Petition, the respondent claimed that she is an Iranian
       citizen and is married to Mr. Paul Fel-El-Dingo D’Silva, an Indian
       citizen. He had converted to Islam, on 30.11.2008 and thereafter the
       marriage was solemnized in Dubai, UAE on 13.05.2009. The marriage
       certificate issued to the couple was translated by an Authorised
       Translator and certified by the Consulate General of India at Dubai,
       UAE. However, the respondent claims that disputes arose between
       Mr. Paul and her, shortly after they consummated the marriage,
       which led to her initial return to Iran and her subsequent relocation to
       Bengaluru at his insistence. It is the respondent’s case that Mr. Paul
       claimed to have financial difficulties which motivated her to pursue her
       Postgraduate degree in Biotechnology in Bengaluru and her Doctorate
       from Mysore University to contribute to the family income. However,
       in the meanwhile, the relationship soured between the respondent
       and Mr. Paul and he left her in Bengaluru, to reside with his family in
       Goa. Consequently, the respondent instituted a maintenance petition
       under Section 125 of the Criminal Procedure Code, 1973, against
       her estranged spouse, before the learned Family Court in Bengaluru
       and was awarded a monthly maintenance amount of Rs.15,000/-. Mr.
       Paul appealed against this order before the High Court of Karnataka,
       but was unsuccessful. On 17.11.2020, the respondent applied on
       the website for Overseas Citizen of India(OCI) Card under Section
       7(1)(d) of the Citizenship Act,1955 and generated her application for
       an OCI card on the basis of her marriage to Mr. Paul, and went to
       submit it to the local FRRO in Bengaluru on 4.12.2020. However, the
       officials refused to accept the form stating that the presence of Mr.
       Paul was necessary for processing her application for registration.
       It is in this context that the petition before the Delhi High Court
       came to be filed. The Respondent is aggrieved by the Appellant’s
[2024] 8 S.C.R.                                                        823

                    Union of India v. Bahareh Bakshi


     insistence on the physical/virtual presence of her estranged spouse,
     who is admittedly an Indian citizen, for the purpose of processing
     her OCI card application.
4.   The Single Judge of the Delhi High Court allowed the writ petition
     of the Respondent and directed the Union of India to accept her
     Overseas Citizen of India(OCI) Card without the presence of her
     spouse. It was held that it is not mandatory u/Clause 21.2.5(vi) of
     Chapter 21 of the Visa Manual for personal interview to be conducted
     for the spouse by the Indian Mission/Post/FRRO. In the absence of
     any rule or guideline mandating the presence of both spouses, the
     checklist should not have been formulated in such a manner so as
     to impose the condition.
5.   On 25.3.2022, the Division Bench of the Delhi High Court upheld
     the order of the Single Bench with a clarification that there would be
     no bar on the Union of India from carrying out investigation on the
     claim of the respondent in her application for the Overseas Citizen
     of India(OCI) Card. It was noted that the object of the enquiry is to
     be satisfied that the application is genuine and not founded upon
     a false claim for marriage. There could be cases where the Indian
     spouse may die or go missing. In such situations, it may not be
     possible to produce the Indian spouse. The Division Bench was
     of the view that insisting on producing the husband at the time of
     personal interview was clearly arbitrary and is only one of the modes
     by which genuineness of the claim can be satisfied.
6.   Before this Court, it was projected from the side of the appellant that
     the checklist for considering an OCI card requires both the spouses
     to be present for an interview with the authorities. The Visa Manual
     was also referred to in the course of the proceeding to argue that the
     presence (physical or virtual) of both the applicants is essential. The
     Counsel for the respondent however contended that on account of the
     estranged relationship with her husband, the Indian citizen spouse is
     not available to appear before the authorities either physically or by
     virtual mode in support of her application for OCI card. It was further
     contended that since various legal proceedings are pending with the
     Indian husband, he is unlikely to appear before the authorities and
     because of the impossibility, the application be processed without
     insisting for the presence of the applicant’s spouse at the time of
     the personal interview.
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7.     In support of their respective contentions, both sides have relied
       on sub-Clause (d) Section 7A of the Citizenship Act, 1955, which
       requires that the applicant for OCI card must have solemnized a
       registered marriage with the Indian citizen and the marriage ought
       to have subsisted for not less than two years immediately preceding
       the presentation of the application. It was argued that the High Court
       failed to note that Section 7(1)(d) and Section 7(1)(f) of the Citizenship
       Act,1955 and para 21.1.4 and 21.2.5(vi) of the Visa Manual read
       together, not only require the genuineness of marriage but also
       whether there is a re-marriage or death of spouse etc. The Visa
       Manual, 2021 prescribes that it is important to cross-question the
       spouses separately to ascertain the genuineness of marriage. On the
       other hand, the Learned Counsel for the Respondent would argue
       that under certain conditions, it may not be necessary to produce
       the spouse. It is argued that it is only to ascertain the genuineness
       of marriage that physical/virtual present may be needed.
8.     The statutory provisions concerning Overseas Citizen of India(OCI)
       Card are contained in Section 7A, 7B,7C and 7D of the Citizenship
       Amendment Act,1955(as amended in 2015). Though OCI Card
       holders remain citizens of their country, they enjoy certain privileges
       such as multiple-entry lifelong visa for visiting India for any purpose,
       exemption from registrations with the FRRO and FRO, parity with Non-
       Residential Indians(NRIs) in some aspects etc. Section 7A pertains
       to the ‘Registration of Overseas Citizen of India Cardholder’ whereas
       Section 7B covers the conferment of certain limited rights on OCI
       Card Holders. Section 7C deals with ‘Renunciation’ whereas Section
       7D contains provisions regarding the ‘Cancellation of Registration’ as
       OCI Cardholder. Section 7A(1)(d) which is relevant for our purpose,
       reads as under:
            “7A. Registration of Overseas Citizen of India Cardholder-
            (1) The Central Government may, subject to such
            conditions, restrictions and manner as may be prescribed,
            on an application made in this behalf, register as an
            Overseas Citizen of India Cardholder—
            (a) ….. …..
            (b) ….. …..
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                     Union of India v. Bahareh Bakshi


           (c) ….. …..
           (d) spouse of foreign origin of a citizen of India or spouse
           of foreign origin of an Overseas Citizen of India Cardholder
           registered under section 7A and whose marriage has been
           registered and subsisted for a continuous period of not less
           than two years immediately preceding the presentation of
           the application under this section:
           Provided that for the eligibility for registration as an
           Overseas Citizen of India Cardholder, such spouse shall
           be subjected to prior security clearance by a competent
           authority in India”
9.   It is essential to note that the Central Government is empowered
     to register the foreign spouse of a citizen of India as an OCI holder
     “subject to such conditions, restrictions and manner as may be
     prescribed, on an application made in this behalf”. The proviso to
     Clause 7A(1)(d) also provides for ‘a prior security clearance’ by the
     competent authority for eligibility.
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:-
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          “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.                                                               827

                     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
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       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:
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                        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