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Judgment
The present writ petition has been filed by the petitioner, seeking the following reliefs:
"It is, therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to call for the entire record, examined the same and allow this writ petition in the interest of justice and;
a)Quash and set aside Order No. JP1079462142024(Policy) dated 13.05.2024 issued by the Regional Passport Officer, Jaipur;
b)Direct the Respondents to issue/renew the passport of the Petitioner forthwith, without insisting upon the mention of the father's name;
c)Any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner."
BRIEF FACTS
The facts germane to the present writ petition, briefly stated, are that the marriage between the petitioner's mother and father was solemnised on 06.06.2010, and the petitioner was born out of the said wedlock on 24.12.2011. On account of irreconcilable differences, the marriage was subsequently dissolved by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, and exclusive custody of the petitioner was granted to the petitioner's mother vide judgment and decree dated 14.10.2017.
Thereafter, the petitioner's mother, as the petitioner's natural guardian, applied for the issuance of a passport in the petitioner's name under the single-parent category. Pursuant thereto, the passport bearing No. T3158586 was issued, valid from 08.05.2019 to 07.05.2024, with only the name of the petitioner's mother, i.e., Ms. Gazal Mishra, endorsed therein.
Prior to expiry of the said passport, the petitioner's mother filed a fresh application for its renewal on 05.04.2024, with an appointment scheduled on 10.04.2024 at the Passport Seva Kendra, Jaipur. On 10.04.2024, the application, bearing reference No. 24-0006079232, was submitted along with the requisite documents.
The petitioner's file was thereafter forwarded to the Regional Passport Office for further processing, pursuant to which the petitioner's mother received a communication dated 13.05.2024, bearing Order No. JP1079462142024(Policy), issued by respondent No. 3, directing the petitioner to furnish an undertaking mentioning the name of the petitioner's father as a condition for renewal of the passport.
Aggrieved thereby, the petitioner has preferred the present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER
Learned counsel for the petitioner submits that the reasons recorded for withholding renewal of the passport are contrary to Section 6(2) of the Passports Act, 1967. He further submits that the impugned order is inconsistent with Clause 4 of Chapter 4 of the Compendium of Instructions/Guidelines relating to the issue of passports in India/Abroad, updated till 31.05.2020 (Passport Manual, 2020), and the FAQs issued thereunder. He submits that the notification titled 'Simplification of Passport Rules' requires an applicant to furnish the name of only one parent, and not both. He further submits that the respondents, having issued the petitioner's passport in 2019 without insisting on endorsement of the father's name, have now arbitrarily passed the impugned order. He accordingly prays that the impugned order be set aside and the respondents be directed to issue the petitioner's passport without insisting on endorsement of the father's name.
In order to buttress his contentions, learned counsel for the petitioner places reliance upon the judgments passed by the Delhi High Court in Smita Maan & Anr. Vs. Regional Passport Officer1, Shalu Nigam & Anr. Vs. The Regional Passport Officer & Anr.2 and Ms. Parul Daware & Anr. Vs. Regional Passport Officer & Anr.3, the judgment passed by the Madhya Pradesh High Court in Devyani Nitish Bhardwaj Vs. Union of India4, and the judgment passed by a Co-ordinate Bench of this Court in Riddham Deora Vs. Union of India & Ors.5.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
Per contra, learned counsel for the respondents opposes the aforesaid submissions and contends that the impugned order dated 13.05.2024 is strictly in consonance with the Passport Manual and the relevant Government notifications. Relying upon Clauses 4.1 and 4.3 of Chapter 4 of the Passport Manual, 2020, read with the Ministry of External Affairs' clarification dated 28.02.2023, he submits that furnishing the names of both biological parents is mandatory where a minor is born out of wedlock, irrespective of a subsequent decree of divorce. He further contends that the exception permitting exclusion of the father's name is confined strictly to cases where the father is unknown or has had no contact with the child since birth. Since the petitioner's biological father is known and stands explicitly identified in the divorce decree dated 14.10.2017, the present case, according to him, does not satisfy the specific criteria for such exclusion. He accordingly submits that the respondents have acted within their jurisdiction in requiring an undertaking mentioning the father's name for renewal of the petitioner's passport.
ANALYSIS AND FINDINGS
This Court has heard learned counsel for the parties as well as perused the material available on record.
A bare perusal of the record reveals that the petitioner was born out of the wedlock of his parents on 24.12.2011. It is an admitted position that the marriage between the parents was subsequently dissolved, and exclusive custody of the petitioner was granted to his mother vide judgment and decree dated 14.10.2017. The record further reveals that, following the said decree, the respondents had earlier issued a passport (bearing No. T3158586) to the petitioner, valid from 08.05.2019 to 07.05.2024, wherein only the mother's name was endorsed as a single parent.
The controversy in the present writ petition is whether the respondents, having already issued a passport excluding the father's name in 2019, can now, at the stage of renewal, insist upon inclusion of the name of his father by placing reliance on the subsequent clarification to the Passport Manual dated 28.02.2023.
Apropos of the aforesaid issue, it would be apt to refer to Clause 4.1, 4.3 and 4.5 of Chapter 4 '4. ISSUE OF PASSPORTS TO MINORS' of the Passport Manual (updated up to 31.05.2020):
“4. SPECIAL CASES OF MINORS REQUIRING PASSPORTS
Exclusion of father/mother name from passport of minor in single parent custody
4.1.The online passport application form now permits that an applicant may provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and get passport(s) issued where the name of either the father or the mother is not required to be printed at the request of the applicant. xxxxx
4.3.In case of minor children of married parents, the name of father/mother shall be furnished by the other single parent having the custody of the child, irrespective of the status of their marriage, such as, divorced, divorce pending, separated or deserted, with or without visitation rights to the estranged parent. xxxxx
Children of divorced parents xxxxx
4.5.A court decree granting divorce would normally award custody of the minor child/children to either parent. The PIA must ensure that the application for the minor’s passport is entertained only from such parent who has been granted custody by the court. While doing so, the PIA must also satisfy himself that the period of limitation for appeal against such decree has expired before issuing the passport. PIA must also ensure that if the other parent has visitation or other rights on the child as per court order, the consent of the other parent is also furnished. However, in rare cases where one of the parents wilfully refuses to give consent or inordinately delays consent or objects in writing to the PIA against issue of passports to his/her children residing with other parent without any cogent reason, and thus denying the fundamental right of the children to travel, passports may be issued to the child/children, after receipt of an affidavit in the form of Annexure ‘C’ obtained from the parent having the custody of the children, stating that the other parent is wilfully denying or not granting permission for issue of passports to the children. The other parent should be informed in writing in advance by the PIA of the proposed issue of passport to children at the request of the parent who is having the custody of the children. It will then be the responsibility of the other parent to approach the courts for suitable redressal.”
Examining the aforesaid clauses in light of the facts of the present case, it is undisputed that the petitioner's parents are divorced vide decree dated 14.10.2017, and that, in the said proceedings, the father consented to the mother being granted exclusive custody of the petitioner. The record further indicates that, along with the application for renewal, a declaration under Annexure 'C', as contemplated by Clause 4.5 above, has been furnished by the petitioner's mother, being the parent in whose custody the petitioner resides. The petitioner was, therefore, entitled to have his passport renewed without an undertaking from his father.
It is also relevant to note that Paragraph B, titled 'Other Changes', under Annexure I, 'Simplification of Passport Rules', annexed to the notification dated 25.07.2018 issued by the Ministry of External Affairs, reads as under:
“(i)The online passport application form now requires the applicant to provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and to also issue passports where the name of either the father or the mother is not required to be printed at the request of the applicant.”
It is thus evident that a passport application may be made by a single parent on behalf of their child, and that the name of the other parent need not be printed at the applicant's request. This position, taken together with the fact that the petitioner had already been issued a passport in 2019 without the father's name being printed, warrants renewal of the petitioner's passport on the same basis.
Further, the relevant FAQ posted on the website of the Passport Seva6 also reads as under:
"Special Cases Of Minors Requiring Passports
Exclusion of father/mother name from Passport of minor in single parent custody
1.The online Passport application form now permits that an applicant may provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for Passports for their children and get Passport(s) issued where the name of either the father or the mother is not required to be printed at the request of the applicant.
2.In case of minor children of unwed single parent, the name of father or mother is not to be mentioned in the Passport application and in the Passport. In case of unwed parents submitting Appendix-12, name of both the parents is to be mentioned in the application form and in the Passport.
3.In case of minor children of married parents, the name of father/mother shall be furnished by the other single parent having the custody of the child, irrespective of the status of their marriage, such as, divorced, divorce pending, separated or deserted, with or without visitation rights to the estranged parent."
The above reiterates the position that an applicant may provide the name of only one parent, and that the name of the other parent need not be printed at the applicant's request. The only requirement, in the case of a minor, is that the parent having custody must furnish the name of the other parent, a requirement that, in the present case, stands satisfied by the petitioner's mother through Annexures 'C' and 'D' to the renewal application.
That the above mentioned FAQs posted on the website of the Passport Seva (supra) also reads as under:
"Single divorced parent with exclusive custody of child without visitation rights for the other parent
Where the custody of the child has been given exclusively to either parent without any visitation rights to the other parent, the question of obtaining consent of the other parent would normally not arise. A certified copy of the court order has to be submitted with the application and Annexure ‘C’ signed by the single parent."
As noted above, the petitioner's mother has already furnished both the decree dated 14.10.2017 and the declaration under Annexure 'C' along with the renewal application. Thus, the petitioner's mother has already completed the requisites for the renewal of petitioner's passport.
The above legal position is further fortified by the judgment by the Madhya Pradesh High Court in Devyani Nitish Bhardwaj (Supra), wherein it was held as under:
"16.Declarant in the form of Annexure (C) is required to declare that there is an ongoing case between the parents for divorce and custody of minor child is also pending but the competent Court has not issued any prohibitory order for issuance of passport without consent of other parent. Similarly a single parent is required to give a declaration that child is being exclusively in the physical custody of that parent. There is no prohibition in the Passport Rules that without any consent of the father, passport cannot be issued to minor child. Even there is no provision that in the absence of any prohibitory order, the permission from the Court is required.
17.Under these circumstances, after perusing the judgment delivered by the Division Bench of the Bombay High Court in the case of of Miss Yushika Vivek Gedam (supra), the present petition is allowed to the following extent:-
(i)The impugned communication dated 08.11.2024 issued by respondent No.2 is hereby quashed.
(ii)Respondent No.2 is directed to renew the passport of petitioners - Miss Devyani Nitish Bharadwaj and Miss Shivaranjani Nitish Bharadwaj upon the application which is already submitted by them through their mother after considering declaration submitted by her in the form of Annexure (C).
(iii)Respondent No.3 (father of petitioners) will be at liberty to take appropriate steps before the Family Court, Mumbai at Bandra in respect of apprehension of the father that the documents filed with present petition are not genuine. At the same time, respondent No.3 shall be at liberty to approach the Family Court seeking prohibitory order for restraining the petitioners from travelling abroad, if so wishes. If any such application is moved, the same shall be decided by the Family Court without influenced by this order in accordance with law.
(iv)Respondent No.2 is directed to complete the formalities for renewal of passport within a period of one week from today in accordance with law."
Further, in Shalu Nigam (Supra) the Delhi High Court has held as under:
"20.Consequently, this Court is of the view that mother's name is sufficient in certain cases like the present one to apply for Passport, especially as a single woman can be a natural guardian and also a parent.
xxxx
24.The fact that the respondents had on previous two occasions, in the year 2005 and 2011 issued Passport to petitioner No. 2, without insisting on father's name, makes it evident that the said requirement is not a legal necessity, but only a procedural formality, which cannot be the basis of rejecting the petitioner No. 2's case. Consequently, it appears that legally and factually there is no impediment in issuing the Passport to the petitioner No. 2, without mentioning her father's name"
This Court is in respectful agreement with the view taken by the Delhi High Court; the principle laid down therein applies squarely to the present case, given that the petitioner had already been issued a passport in 2019 without insistence on the father's name.
As far as the contention of the respondent's viz the clarificatory note dated 28.02.2023 is concerned, it would be apt to reproduce the same as under:
"xxxxxxx
2.The matter has been examined in the Ministry in consultation with Department of Legal Affairs, Ministry of Law & Justice and the Department has opined that "No exhaustive definition of the term single parent may be given". It is further informed that an Inter-ministerial Committee was formed in 2016 to look into the passport related issues. The committee had also examined the captioned subject and had concluded that in the following cases, it may be said that the child has a single parent (mother).
(i)When the mother who is an Indian citizen, claims that the biological father had no contact with the mother or the child after the child's' birth.
(ii)Where the child's father is either unknown, for example a child born after a rape, etc;
(iii)Where the biological father has terminated the relationship with the mother after conception/ birth of the child.
3.In view of the above, the following may please be noted for compliance:
(a)Para 4.1 which enables single parents to apply for passports for their children where the name of either the father or the mother is not required to be printed, may be applied in the cases given bellow:
(i)When the mother who is an Indian citizen, claims that the biological father had no contact with the mother or the child after the child's birth.
(ii)Where the child's father is either unknown, for example a child born after a rape, etc;
(iii)Where the biological father has terminated the relationship with the mother after conception/ birth of the child.
(iv)Cases where a biological married/unmarried father who is an Indian citizen claims that the biological mother has abandoned the child, the procedure as applicable for single mother would apply mutatis mutandis.
(b)Provision of para 4.1 is an enabling provision only and it has to be read in conjunction with provision of para 4.3 which mandates furnishing of narne of both the parents if the minor is born out of wedlock/marriage even in the cases where divorce has taken place with or without visitation rights to the estranged parent. Requests of issuance of passport with exclusion of father/mother name from passport of minor in single parent custody may be dealt with in accordance with para 4.1, 4.2 & 4.3 of chapter 9 of the Passport Manual 2020, as the case may be.
xxxxxxx"
Even the clarificatory note relied upon by the respondents does not assist their case. It clearly provides that a single mother may apply for a minor's passport, and that the father's name need not be printed thereon, where the biological father has terminated the relationship with the mother after conception or birth of the child.
In the present case, the legal union between the petitioner's parents stood dissolved by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, vide judgment and decree dated 14.10.2017. The petitioner's custody was permanently and voluntarily entrusted to the petitioner's mother vide decree dated 14.10.2017, circumstances indicating that the biological father has, in effect, relinquished his responsibilities towards the petitioner, who has, in fact, taken his mother's surname rather than his father's. A conjoint reading of Clauses 4.1, 4.3, and 4.5 of the Passport Manual, 2020, together with the clarificatory notification dated 28.02.2023, therefore renders the present case a fit one for the issuance of the petitioner's passport without the endorsement of the father's name.
While considering similar objections and virtually the same Clarificatory Notification dated 28.02.2023, which has been pressed herein by the respondents, the Delhi High Court in Smita Maan (supra) repelled the said objections and, while allowing the writ petition, issued directions to re-issue the passport in favour of the minor child without the name of the father. It was thus held as under:
"18.Even a perusal of the OM would show that in peculiar cases, where there is no contact of the father with the mother or the child that the name of the father need not be included in the passport. Mr. Kumar's submission that this OM would only apply to single unwed parents may not be correct inasmuch as the language used in the OM and in the Passport Manual are clear. Wherever the term 'single unwed parent' is to be mentioned, the same has specifically been mentioned by the Passport Authorities. In other clauses the term `single parent' is used.
19.The fact that the name of the single parent can be mentioned without the name of the other parent is also recognized in the judgments cited above. The relevant portions of the same are set out below.
xxxxx
23.In all the three decisions quoted above, the biological father had in effect disowned the child and had severed all ties with the child. Irrespective of the fact that the applicable clauses in the Manual may be different, the spirit behind the said decisions is clear, i.e., that under certain circumstances the name of the biological father can be deleted and the surname can also be changed. Both the Passport Manual and the OM relied upon by the Respondents recognise that passports can be issued under varying circumstances without the name of the father. Such a relief ought to be considered, depending upon the factual position emerging in each case. No hard and fast rule can be applied. There are myriad situations in the case of matrimonial discord between parents, where the child's passport application may have to be considered by the authorities. Such situations include-
•divorce with sole custody and mere visitation;
•divorce with joint custody and visitation;
•divorce with sole custody and no visitation;
•divorce with complete disowning of the child;
•divorce with some rights being given to the child;
•divorce between the couple but rights vesting in either side's grandparents;
•Separation with divorce pending and visitation issues pending in Court;
•Desertion by either parent;
•Divorce or Separation with conditions relating to subsequent marriages which may alter the relationship with the child;
•Legal disowning of the child by either parent;
•Situations where the couple are in different countries and an attempt is made to remove the child from a jurisdiction;
The situations set out above are not exhaustive but are illustrative to show how the passport applications of minors may have to be considered and examined under varying circumstances. The Manual merely contemplates some of the situations and provides for certain mechanisms. However, the need for flexibility exists depending upon the fact situation. A thorough examination and understanding of court orders may also be required.
24.In this backdrop, the Court notes that the facts of the present case are quite peculiar. As per the settlement which has been entered into by the biological father and the mother/Petitioner No. 1, the father has given up all rights, if any, towards the child. There is no visitation. The child has also not been brought up by the father. Moreover, the fact that the minor son is also using the surname of the mother and the maternal grandparents, itself shows that the father does not wish to have any concern or relationship with the child. No maintenance or alimony has also been paid to the Petitioners in this case. In fact, this would be a case where the father has completely deserted the child. Under such circumstances, this Court is of the opinion that Clause 4.5.1 of Chapter 8 and Clause 4.1 of Chapter 9 would clearly be applicable.
25.In the unique and peculiar circumstances of this case, it is accordingly directed that the name of the father of Petitioner No.2 be deleted from the passport and the passport be re-issued in favour of the minor child without the name of the father. Needless to add that this order shall not be treated as a precedent.
26.The Petitioner No. 1 along with her son may appear before the Regional Passport Office, Delhi and surrender the passport which has already been issued along with the certified copy of this order. Let the new passport be issued without the name of the father within one week thereafter." (Emphasis Supplied)
Applying the ratio of the aforesaid judgment passed by the Delhi High Court to the facts of the present case, this Court is of the considered view that the respondents have adopted a hyper-technical and pedantic approach. It is undisputed that the legal union of the petitioner's parents was terminated and the petitioner's mother was granted the exclusive custody of the petitioner vide judgment and decree dated 14.10.2017, and that on an earlier occasion, the passport was accordingly issued to the petitioner in 2019 without the endorsement of the father's name.
The respondents cannot now, at the stage of renewal, arbitrarily reverse this position and insist upon an undertaking, or inclusion of the father's name, by mechanically invoking the clarificatory notification dated 28.02.2023. Such rigid insistence not only disregards the statutory declaration made by the petitioner's mother in Annexure 'C', but also runs contrary to the flexible, fact-specific approach mandated by the Passport Rules and recognised by various High Courts. Consequently, the impugned order dated 13.05.2024 is quashed as being legally unsustainable.
CONCLUSION AND DIRECTIONS
In view of the foregoing discussion, the present writ petition is allowed.
The respondents are directed to process the petitioner's application for renewal of passport without insisting upon an undertaking as to the father's name, and to issue the renewed passport without endorsement of the father's name, subject to completion of the requisite formalities within a period of one month from the date of receiving a certified copy of this order.
As a necessary corollary, all pending application(s), if any, stand disposed of.