Zhanna Lyan v. Union of India & Anr.

1. This hearing has been done through hybrid mode.

2. A peculiar situation arises in the present case. The Petitioner, who is a citizen of Russia, seeks cancellation of her exit permit and also seeks issuing of an entry (X-2) visa in accordance with notification no. 25022/62/2020-F-I dated 13th August, 2020.

3. The brief facts of the matter are that the Petitioner was born in Kiev, Ukraine in 1970 when it was part of the erstwhile Union of Soviet Socialist Republics (USSR). Later, she was issued a passport under Russian Federation nationality. She arrived in India in December, 2007 on the basis of the Russian passport and a tourist visa bearing no.AC776259 (DOI: 11th December, 2007, DOE: 10the June 2008).

4. It is her case that she got married to an Indian citizen under the Special Marriage Act, 1954. She had a child born out of the wedlock by the name Lucky Lyan who was born in Rohini, Delhi on 31st October, 2008. Later, she divorced her husband by mutual consent under the Special Marriage Act, 1954 and the sole custody of the child was given to the Petitioner. The final decree of dissolution of marriage was also passed on 8th October, 2010.

6. As per the Respondents, the matter of the Petitioner was referred to the Bureau of Immigration. The Bureau has decided to deny the Petitioner visa extension service and issued her with a Leave India Notice. The Petitioner was further issued an exit permit along with a penalty of Rs.50,000/- for the visa violations committed by her. Ld. counsel for the Respondents submits that the exit permit has also come to an end on 6th March, 2022 and, thereafter, the Petitioner is staying illegally in India.

7. On the other hand, ld. Counsel for the Petitioner relies upon the notification no. 25022/62/2020 dated 13th August, 2020 issued by the Ministry of Home Affairs, Foreigners Division which provides for extension of stay on X-2 visa in case of foreigners who were married to Indian nationals but have been divorced, if the couple had a child whose custody is given to the foreigner. The relevant clause is set out below: “(b) In case of divorce:

(i) If the couple had a child whose custody has been given to the foreigner by a court and the foreigner has not re-married another foreigner/ Indian national, he/she may be allowed extension of stay on X-2 visa by FRRO/ FRO concerned subject to usual checks and no local objection.

(ii) If the couple has no child, the existing X-2 visa of the foreigner will be cancelled and he/she will be granted exit.

(iii) If the foreign national is remarried to another foreign national, no extension of visa will be allowed and he/she will be granted exit.

(iv) In case the foreigner has remarried an Indian national, the existing X-2 visa would be cancelled and the foreigner would be granted exit advising him/her to come back on a new X-2 Visa.”

8. Heard. A perusal of the documents on record clearly shows that the Petitioner does not have valid documents to continue to live in India, however, her son is an Indian citizen and is a minor. Her exit permit has also lapsed. Under these circumstances, ld. Counsel for the Respondent submits that the only option for the Petitioner would be to travel to Russia along with her son, obtain an Indian visa and come back to India. Ld. counsel for the Petitioner submits that since the child of the Petitioner is an Indian citizen, her request for extension of the Indian visa be considered in terms of the clause extracted above.

9. On an overall conspectus of facts in the matter, it is clear that the Petitioner has failed to obtain the requisite documentation required for her for her continued stay in India. The clause from the notification issued by the Ministry of Home Affairs, which has been extracted above, does show that in the case of a minor Indian national, if the foreigner has custody of such minor, extension of stay on X-2 visa can be considered. However, in the present case, this fact needs to be counterbalanced with the fact that, the Petitioner did not make any application for extension of visa for more than 9 years and the exit permit issued to the Petitioner has also lapsed.

10. Considering the facts of the present case, it is directed that the Respondents would consider the case of the petitioner as a whole, including the prayer of the Petitioner for extension of the visa. If on merits, the authorities are of the opinion that the Petitioner cannot be granted an extension of the visa, then the exit permit shall be extended for such reasonable duration so as to enable her to obtain a visa for her son to travel with her son to Russia. While considering the Petitioner’s application for extension of visa, the authorities shall also bear in mind the current geo-political position and take a view. The said decision shall be taken within the next three months. Ordered accordingly.