Don't Let Nationalities Come In Way Of Mother, Her Child: Bombay High Court

The Bombay High Court on Monday expressed displeasure with the Union government's approach in dealing with a Russian woman's plea challenging the exit permit issued to her to leave the country after she divorced her Indian husband.

The 38-year-old woman in her plea claimed that she has remarried another Indian man and has a six-month old daughter with him. The woman has a minor son from her earlier marriage.

A division bench of Justices Gautam Patel and Neela Gokhale on Monday said a woman, who is still nursing her infant, should not be separated because of her nationality.

It observed that the authorities ought to have taken a humane approach considering the special circumstances and said, "The idea of governance that all citizens are considered suspect is not palatable." “Just be right, sensible, and have a humane approach to the woman and her 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 mother, then there is nothing (in your argument),” Justice Patel said.

The local police issued the exit permit to the woman in January 2023 on instructions from the Union Ministry of Home Affairs. She was asked to leave the country by March.

The woman had then moved the high court, which extended the time period of the exit permit.

The woman was first married to an Indian citizen and had obtained an X1 visa and an Overseas Citizenship of India (OCI) card. Later, the couple separated and the woman consented to the divorce proceedings. She had a son from this marriage.

After her divorce, she married her present husband with whom she now has an infant. She applied for continuation of OCI status based on her second marriage on March 5.

Pending hearing of her plea, the woman had sought direction to the police to extend the time period of the exit permit.

On Monday, advocate Rui Rodrigues appearing for the Centre, told the court that the impugned order was as per statutory requirements and there were no sufficient grounds to show the special circumstances by which the woman can apply for citizenship.

The bench, however, noted that she was not asking for continuation of her OCI status after the divorce and that she has remarried an Indian man.

“Why would any government decide to treat its own citizens and penalise them because they have married someone with foreign origin/foreigner? It is as if the government is saying you dare not marry a foreigner… We will not blind ourselves from the fact that we have a mother with a six-month-old child before us. We are not letting you sunder this family," the court said.

“You are saying that her OCI was in her first marriage.. and therefore it cannot continue. Your rules are difficult for us to understand. You are punishing an Indian citizen (the man) and his daughter also. We are trying to say something in as much interest of the petitioner and the respondent to strike a balance. We find this action disproportionate. Your idea of governance that all citizens are suspect is not palatable to us,” Justice Patel said.

The bench continued its earlier interim relief granted to the petitioner and sought an additional affidavit by the Centre and posted the matter for further hearing on August 21.

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