Madhya Pradesh Supreme Court protects Zambian woman from deportation for two months as her one-year-old son seeks passport.

The Gwalior bench of the Madhya Pradesh High Court granted two months' interim protection to a Zambian national who was facing deportation following the expiry of her visa after it found that the registration of her marriage with an Indian citizen and her son's passport application were still pending.

The Supreme Court issued this order after Loveness Chinyama (petitioner 2), the wife of an Indian national Rahul Raj Pippal, filed an application with the Supreme Court requesting (as an interim measure) that her deportation be stayed pending the determination and approval of the application for issuance of a passport for the couple's one-year-old son (petitioner 1).

A single judge panel Judge Milind Ramesh Phadke The September 13 order said that while “prima facie” deportation was a natural step following the expiry of Loveness' visa, the couple's application for marriage registration was reportedly pending before the registrar in Gwalior, which is the minimum requirement for applying for an OCI card.

It states: “After hearing the rival contentions and perusing the record, this Court prima facie finds that the order of deportation of applicant No.2 was a natural consequence of expiry of visa issued in favour of applicant No.2 on 14.09.2024 and, therefore, it cannot be said that the issuance of such order was invalid in law. However, the fact remains that the application for registration of marriage of applicant No.2 and the applicant in Writ Petition No.27462/2024 (Rahul Raj Pippal) is purportedly pending before the Registrar, Gwalior, though the date mentioned therein is disputed by both sides. This would be the minimum requirement for application of OCI card by applicant No.2 to continue to be eligible to stay in India.

The court further stated that the minor boy's passport application was also apparently pending before the relevant authority and that until his passport was issued, he could not accompany his mother in case she had to return to Zambia, “since the boy is admittedly only one year old and is an Indian citizen by birth”.

The court found that it was not the defendant’s case that Loveness had a “criminal background” or is from a “country, which could endanger their stay in India“.

The Supreme Court took note of this and, “at this stage” and without addressing the admissibility of the application, directed the respondents – which include the Union of India – “as an interim measure” not to deport Loveness for the “next two months”.

IIn the meantime, the court ordered the defendants to file their answer on the merits and scheduled the hearing for November 4.

background

Loveness Chinyama entered India on a student visa in 2019 and married Pippal in February 2024. Their one-year-old son was born before their wedding. Her visa expired in June 2023 but was extended until September 14, 2024. She applied for a further extension, citing her newborn son's Indian citizenship, but the authorities had not yet processed the application.

It was claimed that Although the couple had a son before the marriage, the son is an Indian citizen and would be stranded without his mother for a long time if the interim order is not granted. It was argued that deportation would amount to breaking up the family and would force the minor child to live without his mother.

In addition to various reliefs, the application asked for an extension of Loveness's exit permit until her son's passport is available.

Meanwhile, the Union of India has stated that it has no information about Loveness' marriage till date. It argued that she entered India on a student visa, got a one-year extension in 2023, but waited until the “last moment” for the current extension. It argued that in order to get this extension, the applicant filed the application “out of compassion” on September 8, which does not reflect her credibility and only shows that she somehow wants to stay in India.

The Union of India challenged the admissibility of the application, stating that Loveness was not an Indian citizen and therefore could not claim violation of any fundamental rights under the Indian Constitution as the Constitution only exists to protect the fundamental rights of Indian citizens, and that she was not an Indian citizen at the present time.

Case title: Master XS/O Smt. Loveness Chinyama without Shri Rahul Raj Pippal v. Union of India and others

Case Number: WP No. 27474 of 2024

Click here to read/download the order