A division bench of the Bombay High Court, consisting of Justice GS Patel and Justice Neela Gokhale, granted an interim stay to a Russian woman on the Central government’s order for her to leave India. The court stressed that a person’s nationality should not be a barrier in the way of a mother being with her infant child.
“Just be right, sensible and have a humane approach to the woman and child. Don’t let nationalities come in the way of this. We won’t allow separation even for a minute. If this is not a special circumstance for the mother, then there is nothing,” the court said.
During the hearing of a plea filed by a Russian woman, her husband, their infant daughter, and the minor son, it was submitted to the court that the woman had obtained an OCI (Overseas Citizen of India) card after being initially married to an Indian citizen. However, they later separated, and she willingly participated in the divorce proceedings.
After the divorce, the woman remarried another Indian citizen, and they had a six-month-old daughter together. Despite her application for OCI status based on her second marriage, she received a notice to leave the country by March 24.
The woman sought interim relief from the court, seeking an extension of her exit permit and protection from any forcible expulsion from the country. The court granted the interim relief and continued to extend it till the next hearing.
Advocate Rui Rodrigues, representing the Central government, pointed out the requirement of subsistence of marriage to maintain her OCI status. However, the bench expressed dissatisfaction with the idea of penalizing citizens for marrying foreigners. The bench found it unjust and felt that it appeared as if the government was discouraging its citizens from marrying foreigners.
Taking into consideration the mother’s situation with a six-month-old child, the bench was sensitive to the matter and firmly stated that they would not permit the family to be separated. They reiterated their position that penalising someone for marrying a foreigner is unacceptable.
When Rodrigues sought time to file an additional affidavit, the bench said, “Do not spin this and find a solution. We can’t accept your answer. We are telling you that you are wrong. There are indeed special circumstances. She is not asking for the continuation of OCI after the divorce. She has married another Indian citizen. You are saying that her OCI was in her first marriage and therefore the OCI status cannot continue. Your rules are difficult for us to understand. You are punishing an Indian citizen and his daughter also. We are trying to say something in the interest of the petitioner and respondent to strike a balance. We find this action disproportionate. Your idea of governance that all citizens are suspects is not palatable to us,” Justice Patel said.
However, the bench continued the interim relief granted to the woman and directed the central government to file its additional affidavit by August 6 and also directed the petitioner to file its reply by August 11.
The high court will now hear the matter on August 21.
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