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Foreigner Married to Indian Not Eligible To Enjoy OCI Status After Divorce

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In one of the recent development, the Central Government has told the Delhi Court that the foreigners registered as OCI (Overseas Citizens of India) because of their marriage to Indian nationals will no longer enjoy that status after their divorce.

Due to the same policy, the Indian embassy in Brussels recently asked a Belgian woman to surrender her OCI card after the dissolution of her marriage with an Indian national, the MHA informed. The woman has now moved to the High Court challenging the provision of the Citizenship Act Section 7D(f), under which a foreign spouse of an Indian national would lose OCI status after divorce. MHA said the Section makes it clear that PCI status applies to foreigners on the strength of their spouse is a citizen of India or an OCI cardholder.

Defending the provision, the MHA in an affidavit has said 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 is 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 MHA has said in its affidavit filed through central government standing counsel Ajay Digpaul. 

MHA said the woman was issued a Person of Indian Origin card by the embassy of India in Brussels, on August 21, 2006, on the basis of her marriage with an Indian national. She legally divorced her husband in October 2011, and the PIO card should have been canceled that time, but it was not done.

Also, an OCI card was inadvertently issued to her in 2017 even though she was not married to an Indian citizen or an OCI cardholder at that time and now must surrender the same.

The ministry has also claimed that the woman’s OCI status has not been canceled yet and she was only requested to surrender the card. It has said that a reasonable opportunity shall be given to her to explain her stand before taking any action to cancel her registration as an OCI cardholder.

The ministry has said that foreigners like the petitioners may apply for a visa under the prevailing laws and rules to legally stay in India.

However, the woman has contended that asking her 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 has said in her petition that she received the OCI card when the Indian government merged the Person of Indian Origin (POI) 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,’ she has claimed in her plea.

She had received her POI card in 2006 and it was valid till August 2021, the petition has said and added that she had divorced her husband in 2011 which was communicated to the Indian embassy in Belgium in 2016.  

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