Defending a decision of the Indian Embassy in Belgium, the Centre government has submitted before Delhi High Court that foreigners registered as OCI cardholders because of their marriage to Indian nationals cannot continue to enjoy that status after their divorce.
The Ministry of Home Affairs (MHA) has made the submissions while asking a Belgian woman to surrender her OCI card after the dissolution of marriage with an Indian national.
The woman had challenged Section 7D(f) of the Citizenship Act under which a foreign spouse of an Indian national would lose Overseas Citizens of India (OCI) status on divorce.
The affidavit filed through Ajay Digpaul, the central government standing counsel stated that the section under challenge makes a clear classification based on the intelligible differentia as it applies to foreigners who were registered as OCI cardholders on the strength of their spouse being a citizen of India or an OCI cardholder, and whose marriage has been subsequently dissolved.
“The provision has the object of cancellation of registration as an OCI cardholder of such foreigners as they are no more eligible under the Citizenship Act, 1955,” the affidavit said.
As per the affidavit, the Indian Embassy in Brussels, Belgium had issued a Person of Indian Origin (PIO) card to the petitioner on August 21, 2006.
They got divorced in 2011 and therefore the card should have been cancelled which was not done, MHA said. It was further stated that an OCI card was inadvertently issued to her in 2017 even though she was not married to an Indian citizen or an OCI card holder at that time.
As per the affidavit, the petitioner’s OCI status has not been cancelled yet and she was only directed to surrender her card. It was said that a reasonable opportunity shall be given to her to explain her stand before taking any action to cancel her registration as OCI cardholder.
The Ministry of Home Affairs stated that foreigners like the petitioners can apply for a visa and stay legally in India.
The petitioner contended that the request to surrender her OCI card has no basis in law and also violates the twin doctrines of legitimate expectation and promissory estoppel for the simple reason that she was already divorced when she received her OCI card on February 15, 2017.
She submitted that her OCI card was issued at the time when the Indian government merged the Person of Indian Origin (PIO) and OCI schemes.
“Hence, the concerned provisions of the Citizenship Act by way of which a foreign national married to an Indian citizen loses her right to hold an OCI card in case of divorce have no application to her whatsoever,” said her petition.
Her plea also mentioned that she got her PIO card in 2006 and claimed that it is valid till August 2021. The petitioner also stated that she got divorced in 2011 which was communicated to Indian Embassy in 2016.
The petitioner woman also pointed out that she has a daughter, who holds an OCI card, with her ex-husband and since during the prevailing pandemic tourist travel to India is not possible, their only hope of coming here to meet relatives was the OCI card.
“There is also the very real chance that if the daughter of the petitioner travels to India and is stranded because of some sudden travel restrictions that might be imposed, the petitioner might end up getting separated from her on a medium-term basis,” said the plea.