Bombay High Court
Yushika Vivek Gedam Thr. Her Natural ... vs Union Of India Thr. The Ministry Of ... on 8 January, 2025
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:729-DB
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Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 19042 OF 2024
Miss Yushika Vivek Gedam, )
Age 16 Yrs. Occupation - Education )
Through her Natural Guardian Mother, )
Mrs. Prerana Vivek Gedam, ) ...Petitioner
Vs.
1. Union of India, )
through the Ministry of External Affairs )
2. The Regional Passport Officer, Pune )
3. Vivek Kumar Gedam ) ...Respondents
__________
Mr. Balasaheb G. Ligade, for the Petitioner.
Mrs. Shehnaz V. Bharucha, for the Respondents.
__________
CORAM : G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
DATE : 08 January 2025
Oral Judgment (Per G.S. Kulkarni, J.)
1. The petitioner-Ms. Yushika Gedam is a minor pursuing Higher
Secondary education, who has filed this petition under Article 226 of the
Constitution of India through her mother-Mrs. Prerana Vivek Gedam, the
natural guardian.
2. The grievance of the petitioner is against respondent no. 2 - the Regional
Passport Officer, who has issued the impugned communication dated 18
November, 2024 informing the petitioner that her passport application dated
28 October, 2024 would not be processed, for the reason that the petitioner's
father has objected for re-issuing passport to the petitioner. The impugned
communication is required to be noted, which reads thus:
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GOVERNMENT OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
REGIONAL PASSPORT OFFICE, PUNE
Tel. No. 2027209999 REGIONAL PASSPORT OFFICE
Fax No.: PUNE, PASSPORT BHAWAN,
File No: PN1070298980424 SR. NO.522, BANER-PASHAN
LINK ROAD, BANER,
Letter Reference No: OBJ/328981038/24 PUNE-411045,
MAHARASHTRA.
Date: 18/11/2024
To,
YUSHIKA GEDAM
D/O. VIVEK KUMAR GEDAM, FLAT NO. 29,
WING C, TIRUPATI TOWNSHIP, BHAIRAV
NAGAR, DHANORI, PUNE CITY - 411015,
MAHARASHTRA, INDIA.
Subject: Objection(s) with reference to your Passport Application
Number -PN1070298980424
Dear Madam,
This is in reference to your Passport application number PN1070298980424
dated 28/10/2024.
On processing of the Application form, the following shortcomings came to
notice:-
1) Father of the minor has objected to issuing passport to the applicant.
In view of above, you are requested to furnish either father's consent on
Annexure D along with self attested copy of his passport or Court permission
allowing you (mother) to apply and obtain passport for the minor without the
consent of the other parent, i.e. father, for further processing of the
application.
You are requested to visit this office in person with all the relevant supporting
documents in ORIGINALs on Monday, Tuesday, Thursday & Friday (not on
Wednesday & Public Holidays) between 09:00 am to 11.:30 am only for
further action on your application. Kindly carry a printout of this letter to
allow entry in this Office.
Yours Sincerely,
For Regional Passport Office, Pune."
3. The relevant facts are : There is a marital dispute between the petitioner's
father Mr. Vivek Gedam and her mother-Mrs. Prerana. The marriage between
the petitioner's parents was solemnized on 1 November, 2006. The petitioner
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(Yushika) was born on 1 November, 2008.
4. It is contended that the petitioner's mother was subjected to persistent
harassment, physical and mental by the petitioner's father, hence the mother
had filed Criminal Miscellaneous Application no. 2124 of 2015 against the
petitioner's father as also against his parents and sister-in-law under Section 12
of the Protection of Women from Domestic Violence Act, 2005, in the Court of
Chief Judicial Magistrate at Pune seeking maintenance for the petitioner and
herself. The Court of the Additional Chief Judicial Magistrate, Pune passed an
order dated 21 March, 2021 granting relief in favour of the mother by ordering
maintenance to be paid to her.
5. It is contended that the petitioner's father on the other hand had filed a
petition for Restitution of Conjugal Rights under Section 9 of the Hindu
Marriage Act, 1955 before the Family Court at Durg, Chhattisgarh, which was
later on withdrawn. Thereafter the petitioner's father filed Petition No. 37 of
2017 seeking divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage
Act before the Family Court at Durg, Chhattisgarh, which was dismissed by the
Family Court by judgment and order dated 8 September, 2023. The order of
the Family Court is challenged by the petitioner's father before the High Court
of Chhattisgarh at Bilaspur. Further by an order passed by the Supreme Court
on the wife's transfer application, the First Appeal filed by the petitioner's father
is now transferred to be heard before the Bombay High Court bench at
Aurangabad. Such proceedings are pending adjudication.
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6. It is thus the petitioner's case that serious matrimonial disputes are
pending between the petitioner's father and mother, which has become a matter
of concern insofar as the petitioner's application for issuance/re-issuance of
passport is concerned.
7. The petitioner is taking education at Kendriya Vidyalaya at Pune. In the
last academic year, she was in the X Standard, in which she secured 92% marks.
On 6 September, 2024, Kendriya Vidyalaya Sangathan issued a Circular that 12
students be nominated from the Kendriya Vidyalaya Schools for attending
'Sakura Science High School Programme' to be held at Japan, for which the
eligibility was of the students from Kendriya Vidyalaya Schools, who have
secured over and above 90% marks in X Standard examination.
8. It is contended that as the petitioner was a bright student having scored
marks above 90% in the X Standard examination, she was being nominated by
her school to attend the said programme in Japan, for which, she would need a
valid re-issued passport.
9. The petitioner's mother accordingly made an application dated 28
October, 2024 to respondent no. 2 for re-issuance of her passport, supported by
all relevant documents. It was numbered as passport application no.
PN1070298980424. By the impugned communication as noted by us
hereinabove, the petitioner's application is refused to be processed on the
objection raised by the petitioner's father.
10. It is on the aforesaid backdrop, the present petition is filed praying for
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the following substantive reliefs:
"a) This Hon'ble Court be pleased to issue a writ of certiorari or any
other Writ or order in the nature of certiorari and be pleased to pass an order
to quash and set aside the impugned letter/communication dated 18.11.2024
issued by respondent no. 2 being exhibit D annexed herewith to this petition.
b) That this Hon'ble Court may be pleased to have a Writ of Mandamus
and/or any other appropriate Writ or Order or Direction in the nature of Writ
of Mandamus thereby directing respondent no. 2 to issue a passport in the
name of petitioner in pursuance of application No. PN1070298980424
submitted by the mother of the petitioner herein being natural guardian being
exhibit C to this petition."
11. Mrs. Bharucha, learned counsel for respondent nos. 1 and 2 in pursuance
of the order passed by this Court on 6 January, 2025 has taken instructions. She
has placed on record a written note of instructions along with the documents
received by her, from respondent no. 2. The stand of the department is far from
being adversarial and in fact is fair and reasonable.
12. The contention of respondent no. 2 is that the petitioner's mother along
with the petitioner's passport application submitted a declaration in Annexure-
D, which required signatures to be made on the passport application by both the
parents of the minor applicant. For the reason that the application was signed
only by the mother and the father's signature was missing, as also, it was
objected by the father, the impugned communication was issued by respondent
no. 2 calling upon the deficiency to be complied by obtaining the father's
signature.
13. In such circumstances, the petitioner's mother also additionally
submitted a declaration in Annexure-C dated 29 October, 2024, being a
declaration required to be submitted by "applicant's parents or guardian for
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issuance of a passport to minor when the parent has not given consent", in which
she selected option in Clause (II)(d) which is to the following effect:
"(d) There is an ongoing court case for divorce/custody of the minor
child and the Court has not given any order prohibiting the issue of passport
without the consent of the father/mother."
14. Mrs. Bharucha has submitted that as there was a dispute between the
petitioner's parents, the petitioner's mother also submitted contact details of the
petitioner's father along with e-mail id. In pursuance thereto, respondent no. 2
addressed an e-mail dated 29 October, 2024 to the petitioner's father inter alia
informing him that the petitioner's mother had applied for re-issuance of the
petitioner's passport along with a single parent declaration in Form Annexure-C.
The said communication also recorded that if the petitioner's father wished to
provide/confirm his consent for issuance of a passport to the petitioner, in Form
Annexure-D, in that event along with self-attested copy of the petitioner's father
passport, Pan Card/Driving Licence, be submitted to respondent No.2 within
15 days, from the receipt of the said letter. It was recorded that in case, there was
an objection for issuance of passport, the same be confirmed within 15 days and
that if no reply is received within 15 days, it shall be presumed that the
petitioner's father had no objection to the issuance of passport to the petitioner,
and in such event the same shall be issued based on the documents issued by the
petitioner.
15. Mrs. Bharucha has submitted that the petitioner's father responded to
respondent no. 2's letter dated 29 October, 2024 by his email dated 14
November, 2024 stating that "the petitioner's application is wrong and that the
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petitioner's mother was giving wrong information regarding single parent ." It
was recorded that he also tried to connect her but could not succeed and hence
he was not giving NOC. It is submitted that after receipt of such letter,
respondent no. 2 issued the impugned letter dated 18 November, 2024 to the
petitioner calling upon the petitioner to provide the father's consent.
16. We have heard learned Counsel for the parties and with their assistance
we have perused the record. At the outset we find that there is much substance
in the submissions as urged on behalf of the petitioner that the petitioner would
become entitled for issuance / re-issuance of a passport as per the requirement of
law, for the reasons we discuss hereunder.
17. We may observe that the Passport Authority is certainly bound to
consider variety of facts and circumstances in respect of the applications received
by it for issuance of a passport and the assessment of such applications is
required to be considered on the touchstone of the requirement of the
provisions of law under the Rules also deal with variety of situations. The
Government being alive of the variety of such requirements is writ large not
only from the provisions of the Rules but the different forms which have been
prescribed to deal with different situations. All such rules and the forms
thereunder are required to be given due effect and on the touchstone of the
mandate as prescribed by the provisions of the passport Act. It is in such context,
we may observe that a specific provision has been made when a declaration in
terms of Annexure-C is required to be made in cases where one parent of the
minor has not given consent. For convenience, we note the contents of the
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declaration issued in Annexure-C by the petitioner's mother's mother which
reads thus:
"Annexure 'C'
SPECIMEN DECLARATION BY APPLICANT'S PARENT OR
GUARDIAN FOR ISSUE OF PASSPORT TO MINOR WHEN ONE
PARENT HAS NOT GIVEN CONSENT
(On plain paper)
I/We Prerana Gedam (name of the parent/guardian applying for passport)
resident of Flat-29, Wing C, Tirupati Township, Bhairav Nagar, Dhanori
Road, Pune 411015, solemnly declare and affirm as under:-
(I) That I/We am/are the mother/father/parents/guardian of YUSHIKA
GEDAM (name of the minor child) who is minor and on whose behalf I/we
have made an application for his/her passport.
(II) Signature/consent of Shri/Smt VIVEK KUMAR GEDAM (name of the
father/mother) who is the father/mother/parents of the child has not been
obtained by me for the following one or more reasons :-
(a) The father/mother of the minor applicant is travelling abroad/s on
sea/travelling in India and unable to file consent; or/and
(b) The father/mother is separated and no court case is pending before
the court regarding divorce/marital dispute/custody of the child; or/and
(c) The father/mother has deserted and the whereabouts are not known;
or/and
(d) There is an ongoing court case for divorce/custody of the minor child
and the court has not given any order prohibiting the issue of passport
without the consent of father/mother; or/and
(e) There is a court order for the custody of the minor child with a parent
who is applying for the passport and consent of other parent (who has
visitation rights) is not available or he/she is refusing to give consent/the
other parent is not availing the visitation rights and his/her whereabouts
are not known; or/and
(f) The parents are judicially separated and custody of the minor child has
not been defined In the court's decree; or/and
(g) The father mother of ................................... (name of minor
child) has deserted me after the conception/delivery. That
................................... (name of minor child) is exclusively under
my care and custody since separation/delivery.
(III) That I/we only am/are taking care of YUSHIKA GEDAM (name of the
minor child) and he/she is exclusively in my/our physical custody."
(emphasis supplied)
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18. Thus once the aforesaid declaration was submitted by the petitioner's
mother in Annexure C, the same was required to be acted upon, as the status of
the petitioner's application had underwent a change from the original
application, which was submitted in Annexure D, which required the consent of
both the parents. However, the impugned communication is solely based,
considering that only declaration in Annexure D is being taken into
consideration and not the declaration in Annexure C, which came to be filed by
the petitioner's mother for the specific reason that the petitioner's father was not
granting a consent/NOC.
19. It is also significant that the petitioner's father has not obtained any order
from any Court that the petitioner or the petitioner's mother ought not to
pursue any application for issuance/re-issuance of passport to the petitioner.
Also, except for stating that he refuses NOC, the petitioner's father has not
made out any legal, valid or justifiable ground or placed any material before
respondent No.2 which could justify denial of the issuance of passport to the
petitioner, as the law would mandate.
20. In the aforesaid situation, in our opinion, the entire purpose of inviting a
declaration in terms of Annexure C (supra) becomes all the more relevant.
Annexure -C in clause (II)(b), (d) and (e) as highlighted by us is relevant which
deals with different situations where there exists disputes between the parents of
the minor applying for passport. Also clause (II)(d) categorically includes a
situation in regard to the ongoing court case on divorce proceedings, between
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the parents of a minor child who has made an application for a passport.
21. The present case is also quite peculiar inasmuch as on one hand, the
petitioner's father is pursuing his case against the petitioner's mother to obtain a
divorce nonetheless he objects to the issuance of a NOC. It also appears to be
clear that the petitioner is staying with her mother. The petitioner is a bright
student having secured outstanding marks in the X Standard examination,
which has qualified her to be eligible to be selected to participate in the study
tour visiting Japan, being undertaken by Kendriya Vidyalaya. In these
circumstances, in our opinion, considering the well-settled position in law, it
cannot be that the petitioner's right to travel abroad by issuance of a passport
can in any manner be scuttled and/or taken away by denying her a passport to
be issued/re-issued merely for the reason that the father for the only reason that
he has disputes with the mother, is not supporting the petitioner's application by
consenting to it. Also the petitioner's mother has submitted a declaration in
Annexure-C, which is now required to be considered and processed by
respondent no. 2.
22. It is well-settled that the expression "person liberty" which occurs in
Article 21 of the Constitution includes right to travel abroad and no person can
be deprived of that right except according to the procedure established in law. It
is held that the procedure prescribed by law has to be fair, just and reasonable,
not fanciful, oppressive or arbitrary. The right to travel abroad is a facet of
fundamental right guaranteed under Article 21 of the Constitution of India
(See. Maneka Gandhi vs. Union of India (1978 1 SCC 248)). The petitioner is
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certainly entitled to such constitutional right guaranteed under Article 21.
23. We may also observe that in the contemporary times traveling abroad
cannot be considered to be a fanciful affair but has became an essential
requirement of modern life. Such need to travel which may be the requirement
of a child, a student or an employee, professional or a person from any other
strata of the society, has undergone a monumental change. Thus, the right to
travel is required to be not only recognized but made more meaningful. This can
be achieved and supported by the authorities implementing the provisions of
the Passport Act by effectively recognizing such contemporary needs in dealing
with passport applications. The present case is an example of a student being
given an opportunity to undertake a study tour by visiting a foreign country.
Any action of the Passport Authority in denying the passport would have severe
consequence not only adversely affecting the applicant in a given situation, but
it may cause irreparable harm to the prospects of the applicant, for any venture
she or he intended to undertake. Thus, a mechanical approach in this regard by
the Passport Authority cannot be countenanced.
24. We thus find that such valuable constitutional right of the petitioner
cannot be prejudiced much less be taken away, and merely on the ground as
contained in the impugned communication dated 18 November, 2024 issued by
respondent no. 2. Further Section 6 of the Passport Act, 1967 provides for
Refusal of passports, travel documents etc. The ground on which the application
of the petitioner is not being processed is in no manner whatsoever recognized
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by Section 6 of the Passport Act. In the aforesaid circumstances, we find that
there is no warrant in law for respondent no. 2 to deny the re-issuance of
passport to the petitioner when the declaration in Annexure-C was submitted by
the petitioner's mother.
25. We accordingly dispose of the petition in terms of the following terms:
(i) The impugned communication dated 18 November, 2024 issued
by respondent no. 2 is set aside;
(ii) Respondent no. 2 is directed to issue passport to the petitioner-Ms.
Yushika Vivek Gedam under her application No. PN1070298980424
submitted by her mother - the natural guardian.
(iii) The passport be granted to the petitioner within a period of two
weeks from today in accordance with law.
26. Disposed of in the above terms. No costs.
[ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.]
Signed by: Vidya S. Amin
Designation: PS To Honourable Judge
Date: 08/01/2025 21:38:23
