Svetlana Kazankina And Ors vs Union Of India And Anr
2015 Latest Caselaw 9027 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of decision: 4th December, 2015

+               W.P.(C) No.635/2013 & CM No.1204/2013 (for stay).

       SVETLANA KAZANKINA AND ORS               ..... Petitioners
                   Through: Mr. Chetan Sharma, Sr. Adv. with
                            Mr. Venancio D‟costa and Mr.
                            Harshad Pathank, Advs.
                                      versus
    UNION OF INDIA AND ANR                    ..... Respondents

Through: Mr. Ruchir Mishra, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition was filed way back in the year 2013 seeking a mandamus to the respondent no.1 Union of India (UOI) and to the respondent no.2 Foreigners Registration Office (FRO) (F&R Branch) to process the application of the petitioners no.1 to 3 for extension of their visas and impugning the letters dated 26th December, 2012 and 18th January, 2013 of the respondents asking the said petitioners to leave the country.

2. It is the case in the petition (i) that the petitioner no.1 is an Uzbekistan national; (ii) that the petitioner no.1 was married to/is living-in with petitioner no.4 Mr. Anand Pradeep Kumar Fredrick, an Indian national, in Uzbekistan; (iii) that from the said alliance, the petitioner no.2 Ms. Nikole Kazankina Anand was born in Uzbekistan; (iv) that upon the petitioner no.4 coming back to India, the petitioner no.1 along with petitioner no.2 as well as petitioner no.3 Vladimir Esonkulovich Kazankina (son of the petitioner no.1 from a previous alliance/marriage) came to India in or about 2012 on a

single Entry Tourist Visa dated 24th August, 2012 for a period of one month and have been residing in India since then and had applied for extension of their visas; and, (v) such extension was denied because the petitioner no.1 was not able to produce any proof of marriage with the petitioner no.4.

3. Vide ad interim order dated 1st February, 2013 which continues in force, coercive measures against the petitioners no.1 to 3 (of deporting them from India) were stayed. The petitioners no.1 to 3 have thus continued living in India.

4. The respondents have filed a counter affidavit inter alia stating that as per the Rules, the petitioner no.1, having merely a live-in relationship with the petitioner no.4, cannot be permitted to reside in India and though the petitioners no.1 & 4 applied for registration of their marriage in India but which was refused.

5. During the pendency of the petition the petitioners, as an interim measure, were granted permission to visit Uzbekistan and to return to India.

6. The senior counsel for the petitioners today states that now another child (a son) has been born in India on 7th May, 2015 to the petitioners no.1&4 and the petitioners have again made a representation to the respondents in this regard and the respondents have vide letter dated 30 th November, 2015 informed, that the proposal for extension of the visas to the petitioner no.1 and her two children was forwarded to the Ministry of Home Affairs; approval of the Ministry was received on 29th October, 2015 but on different grounds, necessitating referring back the matter to the Ministry and

it is still pending consideration. A copy of the said representation dated 24th November, 2015 and letter dated 30th November, 2015 are handed over in the Court and taken on record.

7. The senior counsel for the petitioners states that the matter be adjourned awaiting the decision of the respondents.

8. None appears for the respondents Union of India.

9. In my opinion, it is not necessary to keep this petition pending.

10. The respondents have denied extension of visas to the petitioner no.1 and her children only on the ground of the Rules permitting such extension only upon proof of marriage being submitted and not in the case of a live-in relationship.

11. The senior counsel for the petitioners in this regard has drawn attention to Annexure P-1 to the petition but which is found not to be Rules but "Information to Foreigners possessing Entry (X) Visa" available on the website of the Bureau of Immigration, India. The same, under the heading "Visa Extension", provides as under:-

"Visa Extension:

Foreigners who have entered India on an Entry (X) visa may approach the concerned FRRO/FRO office for a visa extension only in under mentioned cases:

1. A person of Indian origin who at any time held an Indian passport OR.

2. A person who either of his/her parents or grandparents or great grandparents was born in and was permanently resident in India provided neither was any time a citizen of Afghanistan, Bangladesh, China, Pakistan or Sri Lanka or any other country that may be specified by the Government of India from time to time OR.

3. A person who is the spouse of a citizen of India or a person of Indian origin covered under 1 and 2 above."

(emphasis added)

and under the heading "Frequently Asked Questions : Visa Extension" provides as under:-

"Q. Whether a 5 years extension can be given to a registered foreigner?

A. No. One year VISA extension can be grantedfor following categories of foreigners upto total 5 years:

1. Foreigners of Indian origin, their spouses & children.

2. Experts & technicians coming to India in pursuance of bilateral agreements, their spouses and children.

3. Foreigners married to an Indian National, when on long terms VISA or when long term extension has been

approved by the Ministry of Home Affairs, Foreign Division, Jaisalmer House, 26, Man Singh Road, New Delhi, then further extension up to five year at a time can be given by concerned FRROs/FROs cum Superintendents of Police on production of relevant documents and satisfaction."

(emphasis added)

12. Though it is not evident as to when the aforesaid Guidelines, if based on any Rules, and/or Rules were evolved but it prima facie appears that the said Rules and/or Guidelines are archaic and have not kept pace with the times. The same do not consider that, with the passage of time, relationship between a man and woman may not only be of husband and wife. A live-in relationship though cannot be said to be in the same genre / class as a marriage, is today a factum of life and which cannot be ignored. The Rules/Guidelines, providing for extension of visa of foreigners married to an Indian national appear to have been made with the intent of enabling an Indian married to a foreigner to enjoy the fruits of companionship, love and affection of the said relationship. If that be the intent and purport of the Rules / Guidelines, then today, when the same companionship, love and affection is sought by an Indian national from a foreign national of opposite sex, instead of giving the relationship the stamp of marriage, otherwise, by what has come to be known as a live-in relationship, I fail to see as to why,

for the purposes of granting extension of visa, the two should be treated differently.

13. It is not as if a live-in relationship is an offence under our law. Supreme Court in Lata Singh Vs. State of Uttar Pradesh (2006) 5 SCC 475 observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. It is thus not as if the Courts or the authorities concerned are prevented from dealing therewith or legislating with respect thereto or providing therefor. Rather, under our law, as reiterated in Tulsa Vs. Durghatiya (2008) 4 SCC 520, long spell of living as husband and wife raises a presumption in favour of valid wedding.

14. Supreme Court, in M.C. Mehta Vs. Union of India (1987) 1 SCC 395 held that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country; as new situations arise, the law has to be evolved in order to meet the challenge of such new situations; law cannot afford to remain static; we have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy; we cannot allow our judicial thinking to be constricted by reference to the law as prevailed. Similarly, in B.P. Achala Anand Vs. S. Appi Reddy (2005) 3 SCC 313 it was observed that unusual fact situations posing issues for resolution is an opportunity for innovation. Description of justice as 'the disposition of the human mind to render everyone his due‟ by Cicero, the famous Roman Philosopher and Lawyer, was quoted with

approval. It was further held that as social norms and values change, laws too have to be re-interpreted and recast; law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious human relations by elimination of social tensions and conflicts. Applying the said principles it was held that a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant if the tenant / husband has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband prejudices the deserted wife who is residing in the premises.

15. Supreme Court, in Revanasiddappa Vs. Mallikarjun (2011) 11 SCC 1 held that with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today; the concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role; very often a dominant group loses its primacy over other groups in view of ever changing socioeconomic scenario and the consequential vicissitudes in human relationship; law takes its own time to articulate such social changes through a process of amendment; that is why in a changing society law cannot afford to remain static. It was further held that if one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time. Recently, in Badshah Vs. Sou. Urmila Badshah Godse (2014) 1 SCC 188 also it was observed that law regulates relationships between people; it prescribes patterns of behavior and reflects the values of society; the role of

the Court is to understand the purpose of law in society and to help the law achieve its purpose. It was held that law of a society is a living organism and based on the given factual and social reality that is constantly changing, the law must change. It was further held that the history of law is the history of adapting the law to society‟s changing needs.

16. Not only is the prevalence of a live-in relationship between a man and woman a fact of life today which the appropriate laws ought to take notice of and make a provision for but the Parliament has already taken notice thereof in the law promulgated to deal with the growing menace of domestic violence i.e. the Protection of Women from Domestic Violence Act, 2005 (DV Act) and treated certain kinds of live-in relationships between man and woman at par with marriage.

17. Supreme Court, in Indra Sarma Vs. V.K.V. Sarma (2013) 15 SCC 755 concerned with the application of DV Act to relationships other than marriage, held (i) live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country - the decision to marry or not to marry or to have a heterosexual relationship is intensely personal; (ii) marriage is often described as one of the basic civil rights of man/woman; Article 16 of the Universal Declaration of Human Rights, 1948 also provides that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family; (iii) modern Indian society through the DV Act recognizes in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood; (iv) Section

2(f) of the Act deals with a relationship between two persons (of opposite sex) who live or have lived together in a shared household when they are related by either Consanguinity or Marriage or through a relationship in the nature of marriage; a relationship in the nature of marriage within the meaning of Section 2(f) of the DV Act means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized; (v) while a relationship of marriage continues notwithstanding differences of opinions, marital unrest etc. and even if not sharing a household and is based on law, a live-in relationship is purely an arrangement between the parties, unlike a legal marriage and once a party to a live-in relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end; (vi) the expression "relationship in the nature of marriage" is also described as de facto relationship, marriage - like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc.; (vii) the Courts and legislatures of various countries have now begun to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the needs of those benefits is felt by both unmarried and married cohabitants.

18. Supreme Court, earlier also in D.Velusamy Vs. D.Patchaiammal (2010) 10 SCC 469 had observed that the Parliament in the DV Act has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship and laid down tests of (i) holding out to the society as being akin to spouses; (ii) being of legal age; (iii) otherwise qualified to enter into a legal marriage and; (iv) voluntarily cohabited for a

significant period of time for a relationship, within the meaning of Section 2(f) of the DV Act to be held to be a relationship in the nature of marriage.

19. From all of aforesaid, it is clear that the Rules/Guidelines providing for extension of visa of only those foreigners who have married an Indian national, while denying extension of visa to those foreigners who though have not married an Indian national but have been living in with an Indian national has not kept up with the time. As aforesaid, the Parliament itself in the DV Act has recognised the need for extension of that Act, besides to matrimonial relationships also to relationships in the nature of marriage and the Courts have evolved the tests to determine whether a relationship is in the nature of marriage. I am of the view that just like a need was felt to extend the benefit of the DV Act also to women in live-in relationships in the nature of marriage, there is a need to extend the benefit of the Rule/Guideline providing for extension of visa of foreigners married to an Indian national to foreigners though not married but in a live-in relationship the nature of a marriage with an Indian national. The question whether a relationship will fall within the expression "relationship in the nature of marriage", duration thereof, pooling of resources and financial arrangements, domestic arrangements, sexual relationship, children, socialisation in public and intention and conduct of the parties etc. would be relevant. Notice may also be taken of the fact that Section 16 of the Hindu Marriage Act, 1955 grants legitimacy to children of a marriage which is null and void and which children, but for such provision, would have been illegitimate.

20. I am however in this petition not called upon to adjudge the validity of the Rule/Guideline in force. There is no challenge to the vires thereof in this petition. Nor do I feel an imminent need for this Court to even without the petitioners making out such a case, deal with the question of validity/vires of such a Rule/Guideline. It would be sufficient to direct the respondents to consider the said aspect and to take a decision thereon.

21. However before I part with the subject, a word of caution. This Court in several petitions has come across cases of foreigners desirous of extending their stay in India and otherwise not entitled thereto coming up with pleas of marriage to an Indian national when prima facie owing to the disparity in age etc. there does not appear any element of matrimony in such claims. Supreme Court also in judgments supra not held all live-in relationships to be live-in relationships in the nature of marriage The respondents, while considering whether to extend the benefit of extension of visa to foreigners living-in with Indians would also have to lay down the tests in which such benefit may be made available i.e. whether only to live- in relationship in the nature of marriage or to other live-in relationships also. This Court does not consider itself competent to lay down the tests in this regard and it is only the respondents who, faced with myriad such situations would be able to do the same.

22. The senior counsel for the petitioners also states that the petitioner no.1 along with her children (three) needs to urgently travel to Uzbekistan to meet her ailing mother and on the occasion of Christmas.

23. The petition is thus disposed of with the following directions:-

A. Upon the petitioner no.1 appearing before the respondent no.2 Foreigners Registration Office (FRO) (F&R Branch) at New Delhi, the respondent no.2 shall consider the request of the petitioner no.1 for documents to be able to come back to India if goes back to Uzbekistan along with her children, to meet her mother and on the occasion of Christmas and to take a decision thereon within ten days thereof.

B. The respondents to take a decision on the representation dated 24th November, 2015 supra of the petitioners and the decision whereof is stated to be pending, within one month of today.

C. The respondents to within three months hereof take a policy decision whether to extend the benefit of extension of visa as presently available to foreigners married to Indian nationals also to foreigners in a live-in relationship with Indian nationals and if so the parameters thereof and to place the said decision before this Court.

24. The interim order in this petition is extended till the last of the decisions aforesaid.

25. The petitioners if remain aggrieved from the decisions so taken, shall have remedies if any available in law.

26. The counsel for the respondents has now appeared and has also been heard and has been made aware of the order.

No costs.

Dasti under signature of Court Master.

RAJIV SAHAI ENDLAW, J

DECEMBER 4, 2015 „pp‟..