Rajasthan High Court Urges Centre To Revisit Citizenship Laws For Children Born Abroad To Indian Parents
Stating that children born to Indian citizens outside India often face great challenges relating to citizenship, the Rajasthan High Court has urged the Union Ministry of Home Affairs to revisit the provisions of laws related to the issue, and if deemed necessary, make necessary amendments.
The bench of Justice Anoop Kumar Dhand was dealing with a petition filed by a 5 year old girl. She was born to Indian citizens in Australia and thus acquired citizenship of that country. She moved the Court seeking visa extension, which was in astray amid matrimonial dispute between her parents.
The Court directed the Foreigners Regional Registration Office (“FRRO”) to extend her visa for maximum period without insisting on mother’s NOC, and also to consider her application for issuance of Overseas Citizenship of India Card (“OCI Card”),“sympathetically” within 3 months.
The Court also opined that looking to the welfare and best interest of such children, revisiting international legal framework was also the need of the hour.
“This Court feels that looking to the welfare and best interest of such children, the international legal framework must be revisited inasmuch as it is the need of the hour to call for the action for the countries to enhance cooperation and harmonize legal standards to better protect children. Therefore in the light above discussion, this Court feels that a robust and flexible convention is required to address these unique circumstances while ensuring that the Çhild’s Welfare remains the paramount consideration.”
After the birth of the petitioner in Australia, her parents brought her to India on visa. Matrimonial dispute arose between the parents following which multiple criminal cases were filed by the wife against the husband. As a result, when the husband applied for extension of the petitioner’s visa, no NOC was provided by the wife, that led to rejection of the application.
After hearing the contentions, the Court made a reference to Articles 3, 5 and 9 of the United National Convention on the Rights of the Child, 1989 (“Convention”), and highlighted that best interest of the child was paramount consideration for all the nations.
Underscoring the Supreme Court ruling in the case of Union of India v Agricas LLP which held that International Law had to be enforced to the extent not in conflict with Indian Laws, the Court referred to Article 9 of the Convention that laid down that a child shall not be separated from the parents.
In this light, it was held that deporting the petitioner to Australia without her wishes would not be in her best interest and would clearly breach Article 9. Further, it was held that right against deportation was also protected under Article 21 of the Constitution of India.
“It is true that foreigners enjoy certain fundamental rights under the Constitution of India, including the right to life and personal liberty guaranteed under Article, however, these rights do not extend to the right to reside or settle in the country. But, the present case is unique and peculiar, where the petitioner’s parents are Indian citizens currently residing in India.”
The Court observed that the petitioner could not be left at the mercy/discretion of her mother, because in case the visa was not extended, she would be treated as an illegal migrants and may face deportation.
Hence, the FRRO was directed to consider the application for OCI card of the petitioner sympathetically, and also to extend the visa of the petitioner for maximum period without insisting on the NOC from the mother.
The Court also suggested the Government to revisit laws relating to this matter to secure best interest of such children born abroad from the wedlock of Indian Citizens. At the same time, it was observed that a robust and flexible convention was required under International legal framework to address these unique circumstances.
Accordingly, the petition was disposed of.
Title: Seher Gogia v The Foreigners Regional Registration Officer & Anr.
Citation: 2025 Livelaw (Paradise) 264