Who is OCI?
Overseas citizenship of India (OCI) is a permanent residency available to people of Indian origin and their spouses. With this, they can work in India indefinitely. Even though the term includes the word citizenship in it, OCI is not a citizenship status and does not grant the right to vote or hold a public office. OCI scheme was firstly introduced in Citizenship Act 2005 when the demands for Dual Citizenship were made to the Indian Government.
Court Judgment
Karnataka High Court, permitted a British national, recently, who held the status of Overseas Citizen of India (OCI), to file for divorce and get child custody in a Family Court in Bangalore. It was stated that OCIs are treated just like Non-Resident Indians (NRIs) in many circumstances. They can seek matrimonial relief in India.
The Judgment Of Justice Krishna Dixit
“If the marriage has taken place in India in which parties are ordinarily residing, the native Courts have substantive jurisdiction to adjudge matrimonial disputes; parties cannot be asked to go to some other country to redress their grievances; it is more so when the grieving party is the wife; this view gained support from several International Conventions,” the Court stated.
In the current case, the husband is Christian, and the wife is Hindu. Both were British nationals and got married in India as per Arya Samaj rituals.
Later, they had a civil ceremony marriage in the United Kingdom, which was registered. Their daughter, who was born a few years later, is also a British national, and since 2006 the couple had been residing in India. Both of them obtained an Overseas Citizens of India Card (OCI card) in 2017.
In 2018 the wife filed a divorce case in a family court in India. The husband challenged the case because only a court in England would have the jurisdiction to try the case. The challenge was rejected and the Husband moved the HC in India.
The court stated that they are foreign, which is not the factor in the dispute; but, it is a fact that the Government of India has issued OCI Cards to both of them; thus, they are no strangers to this country. Hence the petition was rejected.
Referring to the Apex Court decision in Sabarnanada Sanowla V/S Union of India, the Court stated that once foreigners are lawfully residing within a territory, they are entitled to certain essential rights, which are necessary for a meaningful life.
The court also stated that the couple got married through rites and rituals of Hindu Arya Samaj, thus, acquired marital status in India in accordance with the Arya Marriage Validation Act, 1937.
The court also stated that subsequent registration of civil marriage does not alter their status or replace the existing marital status and create a new one.
The Court also did not accept, another claim made by the husband that as domicile is a pre-condition to institute matrimonial cases, the Family Court in India could not entertain the wife’s divorce petition.
“Law is not the slave of dictionaries; words employed in a statute do not have a fixed meaning; the contours of their meaning vary with the run of time. Statutes do not suffer from rigour mortis,” the Court observed.
Rights Of Women
The Bench also made statements about the rights of women, equality, and the freedom of persons to determine the nature of their lives.
The court referred to the case of Joseph Shine V/S Union of India and noted that the Constitution provides for equal protection of the laws under Article 14, which includes gender equality and the elimination of a gender-based differentiation in the legal remedies, non–discrimination based on gender under Article 15 and the right to life under Article 21 which includes the right to live with dignity.
Equality between spouses is a necessary facet of gender–equality under Article 14 of the Constitution of India, the court stated.
“‘Truly fair equality of opportunity for both persons in the marriage in terms of opting into marriage & opting out, i.e., dissolution of marriage. Allowing the husband to curtail the ‘exit’ option of the wife, on the ground of lack of jurisdiction or such other factors militates against our constitutional philosophy. It is also pertinent to state that the principle of ‘spousal–equality’ is premised on the provision of effective freedom to both parties to determine the nature of their lives, different styles and ways of living,” the order stated.
