Foreign-Born Child of Indian Parents Gets Visa Extension Without Mother's NOC: Rajasthan High Court

The petitioner, a five-year-old girl, was born in Australia to Indian citizen parents and holds Australian citizenship (paras 11, 17). She came to India with them in August 2022 on a visa later extended to 24.01.2024 (para 18). The parents later separated; as pleaded, she has always lived with her father (para 12). His application to extend her visa was rejected because the mother gave no no-objection certificate (paras 6, 13). Through her father, she sought a visa extension and an Overseas Citizenship of India (OCI) card (paras 3-4). The FRRO replied that no OCI application had been made and it would not deport her, but a foreign national has no right to reside in India (paras 8-9).

The parents are Indian citizens, the child is Australian only by birth there, and no custody order exists in the mother's favour (paras 11-12). The question was whether the visa could be refused only because the mother withheld her NOC (para 13). A five-year-old with Indian parents cannot be left at her mother's sole discretion; without an extension she would be treated as an illegal migrant and could face deportation (para 14). Treating her best interest as paramount, the Court applied Articles 3, 5 and 9 of the UNCRC, to which India acceded in 1992, citing Union of India v. Agricas LLP and Apparel Export Promotion Council v. A.K. Chopra: international law is respected so long as it does not conflict with Indian law (paras 15-16). Deporting her without ascertaining her wishes would breach Article 9 (para 16), and Article 21 read with the UNCRC protects her against such deportation (para 17). Foreigners' fundamental rights do not include a right to reside in India, but this case was unique: the parents live here, the father cannot return to Australia, and the child cannot live with him only because of her nationality (para 18).