Delhi High Court

Teesta Chattoraj vs Union Of India on 30 March, 2012

Author: Vipin Sanghi

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Judgment reserved on: 22.03.2012

%                 Judgment delivered on: 30.03.2012

+                          W.P.(C) 2888/2011

       TEESTA CHATTORAJ                                 ..... Petitioner
                     Through:         Mr. M. Dutta, Advocate
                     versus

       UNION OF INDIA                                   ..... Respondent
                          Through:    Mr. Ruchir Mishra, Advocate


       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI


                             JUDGMENT

VIPIN SANGHI, J.

1. The present writ petition under Article 226 of the Constitution

of India has been preferred by Ms. Teesta Chattoraj, a minor through

her mother and natural guardian Smt. Rajeshwari Chattoraj. The

petitioner seeks issuance of a writ of certiorari quashing the letter

dated 04.04.2011 (Ref. No.RPO/PG/133/11) issued by the respondent,

i.e. the Regional Passport Officer (RPO), New Delhi, whereby the

petitioners request for issuance of a passport has been declined. The

petitioner also seeks a writ of mandamus directing the respondent RPO

to issue a passport in favour of the petitioner on the basis of the

information supplied by the petitioner in her passport application form.

2. The petitioner was born on 15.11.1995 at Kolkata. Her

natural parents are Sh. Abhijit Ghosh and Smt. Rajeshwari Ghosh, who

is now known as Rajehswari Chattoraj. When the petitioner was only

about two years old, the natural parents of the petitioner obtained

decree of divorce by mutual consent. So far as the petitioner is

concerned, the terms agreed between her natural parents, inter alia,

provided that the petitioner's mother will not claim and/or demand of

maintenance and/or alimony for the minor child at present or in future

from the petitioner's father. It was also agreed that the petitioner's

mother would maintain the petitioner. The petitioner's father admitted

that he has no right to see the child for all times to come and he will

not interfere in any manner regarding rearing up the child by the

Opposite party and her family members and that he shall have no right

to claim and/or demand for custody of the said child from the Opposite

party.

3. The petitioner's mother married Sh. Surojit Chattoraj at New

Delhi on 04.03.1999. By registered deed of adoption deed dated

12.06.2006, the petitioner was given in adoption by her mother to her

husband Sh. Surojit Chattoraj. The petitioner submits that religious

ceremonies to mark the acceptance of the petitioner by her adopted

father were also held, and were attended by members and friends of

the family.

4. On 26.07.2010, the petitioner applied for a passport, through

her mother, to the respondent authority. The petitioner was required

to provide, inter alia, the registered adoption deed, which was also

provided. After much waiting, the petitioner was informed by the

impugned communication that her application could not be accepted,

as it had been found on scrutiny that the petitioners biological father's

name, as per her birth certificate, had not been mentioned in the

passport application form, and the adoption deed was not in

accordance with the Hindu Adoption and Maintenance Act, 1956

("HAMA").

5. The gist of the communication dated 04.04.2011 issued by

the RPO reads as follows:

"On scrutiny of file, it is seen that biological father's name as per birth certificate has not mentioned in the passport application form. The adoption Deed as per Adoption Act is also not valid. As per rules of Ministry of External Affairs Circular No.VI/401/01/05/2008 dated 05.10.2009 serial No.4(2) "In the event of remarriage after divorce, the name of step- father/step mother cannot be written in the passport of children from the previous marriage. The relationship of the child to his biological parents subsists, even after divorce by parents. It is also not possible to leave the column of father or mother blank in the passport in such cases. Therefore, such applicants must write the

names of their biological parents in the application form. However, if the stepfather or stepmother is appointed by a Court as legal guardian, the name of such step-parent can be written as legal guardian".

In view of the instruction, you are advised to furnish a fresh Form-1 with name of biological father or a Court Order appointing you as a Legal Guardian. This may be treated as Final Reminder, your compliance may reach this office within 15 days, failing which you have nothing to say and your complaint may be treated as closed". (emphasis supplied).

6. Consequently, the petitioner has preferred this petition,

accusing the respondent authority of acting arbitrarily, illegally and

malafide.

7. The submission of Mr. Dutta, learned counsel for the

petitioner is that the respondent RPO has no authority or jurisdiction to

deny the issuance of a passport to the petitioner by going into the

legality or otherwise of the adoption deed. He submits that the

adoption deed has been duly registered. He submits that the RPO

cannot question, or sit in judgment over the validity, or otherwise, of

the adoption deed.

8. It is argued that the respondent authority does not function as

an adjudicating authority, who could rule on the validity or otherwise of

the adoption deed. He further submits that the only grounds on which

the passport can be refused by the RPO are contained in Section 6 of

the Passports Act, 1967, and the ground raised by the RPO, namely,

that the adoption deed is not valid is not mentioned as a ground in

Section 6 of the Passports Act.

9. It is argued that by declining the passport to the petitioner,

the petitioner's fundamental right to travel has been infringed. In

support of this submission, learned counsel for the petitioner places

reliance upon a decision of the Full Bench of the Punjab and Haryana

High Court in Pawandeep Singh v. Union of India decided on

07.11.2003, reported as 2003 LawSuit (P&H) 1221, which has been

followed subsequently in Satinder Pal Singh Sibia v. Union of

India & Anr., 2007 (1) HLR 59.

10. Learned counsel for the petitioner further submits that even

otherwise it cannot be said that the adoption deed is not in accordance

with the HAMA. It is submitted that Section 9 of HAMA provides that

the mother of a child has the capacity to give the child in adoption. He

further submits that proviso to Section 9(2) also stands fully satisfied,

inasmuch, as, it can be said that the petitioner's natural father has

"finally renounced" the petitioner's world, inasmuch, as, he had, at the

time of obtaining divorce by mutual consent, given up his rights to

have anything to do with the petitioner, and he had also renounced his

responsibilities towards the petitioner as a father.

11. In support of this submission, learned counsel for the

petitioner has placed reliance upon the definition of the expression

"renounce" and "renounce the world" and "renouncing", as contained

in the Advanced Law Lexicon by P. Ramanatha Aiyar (Third Edition);

Black's Law Dictionary (Eighth Edition), and; the Concise Oxford

Dictionary of Current English (Eighth Edition).

12. He also places reliance on an unreported judgment of the

Bombay High Court in Maroti Vitthal Bhatwalkar & Anr. v. Mahila

Vikas Mandal, Chandrapur, 2007 (2) AIR Bom R 44, to submit that

even when the biological parents are alive, the Court could allow the

application of the strangers to take the child in adoption in the interest

and welfare of the child.

13. On the other hand, learned counsel for the respondent

submits that the RPO is enjoined by Section 5 of the Passports Act to

make such an enquiry as it may consider necessary, and thereafter by

an order in writing, either issue the passport or refuse the same.

Learned counsel submits that under Section 5(3) of the Passports Act,

it is provided that in case a passport is issued with an endorsement or

is refused, the passport officer is obliged to record his reasons in brief,

which has been done in the present case.

14. He further submits that the Punjab and Haryana High Court

while rendering the aforesaid decisions did not consider the opening

words of Section 6(1) and 6(2) of the Passports Act, which reads

"Subject to the other provisions of this Act, the passport authority shall

refuse .... .... ....". He submits that apart from the ground specifically

mentioned in Section 6, the passport officer can refuse issuance of a

passport on the ground that the information furnished by the applicant

is incorrect or insufficient, and can require the applicant to resubmit

the application by providing the correct and complete information.

15. Learned counsel for the respondent submits that in the

petitioner's passport application form, the name of the father was

mentioned as that of the adopted father, and not the natural father.

During the course of verification of the factual disclosures made in the

petitioner's application, the petitioner was required to provide the

adoption deed. The adoption deed, though registered, is not valid,

since, even a bare perusal of the adoption deed shows that the

consent of the natural father has not been obtained, and it is not even

the petitioner's case that the petitioner's natural father has either

finally renounced the world, or has ceased to be a Hindu, or has been

declared by a court of competent jurisdiction to be of unsound mind.

Reference is made to Section 9(2) of HAMA.

16. It is further argued that merely because the petitioner's father

renounced or waived his rights, qua the petitioner, and also gave up

his obligations to maintain the petitioner at the time of obtaining

divorce by mutual consent, the same cannot be construed as a final

renunciation of the world.

17. So far as the submission of the petitioner founded upon the

decisions of the Punjab and Haryana High Court is concerned, I reject

the same. With utmost respect and with due deference to the Punjab

and Haryana High Court, I cannot agree with the view taken in the

aforesaid two decisions.

18. In the case of Pawandeep Singh (supra), the passport was

refused on the ground that the adoption deed, on the basis of which

the passport application was moved, was not valid. In this case, the

petitioner was born on 27.08.1989 in Punjab. Both his parents had

died by October 1998. His real grandparents gave him in adoption to

their other son Shri Satpal Singh and his wife, who were living in Italy,

and an adoption deed dated 17.05.1999 was executed and registered

in the office of the Sub Registrar, Ludhiana. The respondents

contention was that under the provisions of HAMA, Sh. Satpal Singh

and his wife, who had sons of their own, could not have adopted the

petitioner and, therefore, the adoption was invalid.

19. The Full Bench, after extracting Section 6 of the Passports Act,

observed as follows:

"9. A bare perusal of Section 6 afore-mentioned shows that except on four grounds mentioned in Sub Section 1 and nine grounds mentioned in Sub- section 2 of Section 6 on no other ground there could be refusal to grant Passport or travel document.

10. In Ganpathi National Middle School v. M. Durai Khanna, (1996) 6 S.C.C. 464 and State of H.P. v. H.P. State Recognised & Aided Schools Managing Committees and Ors., (1995)4 S.C.C. 507 the Hon'ble Supreme Court has held that a child has got a fundamental right of education. In Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, A.I.R. 1967 S.C. 1836 it was held to the effect that Article 21 takes in the right of locomotion and to travel abroad. Hidayatullah, J. in his dissenting judgment also considered that there is no doubt a fundamental right to equality in the matter of grant of passports (subject to reasonable classifications). In Mrs. Maneka Gandhi v. Union of India, (1978)1 S.C.C. 248, the Apex Court laid down the applicable tests under Article 19 in relation to impounding of passport. Under our constitutional scheme the fundamental right enshrined under Article 21 is available not only to adults or non citizens but also to the minors. The Government cannot deprive the minor's right to have a better education or to live a dignified life, apart from love and affection of his own uncle and Aunt though the stand taken by the Respondents that adoption was not valid is correct since the Aunt and Uncle are having their own sons. This significant aspect of the matter was not considered earlier by the Division Bench. The judgment of the Division Bench has also not considered the provisions of Section 6 of the Act. It is, thus, per inqurium. We are, thus, constrained to overrule this decision.

11. We have no hesitation in holding that the action of the Respondent No. 2 in refusing to grant Passport to the Petitioner in the peculiar facts and circumstances of the

case, is in teeth of Article 14 which is antithesis to any arbitrary action and against the Petitioner's fundamental rights enshrined under Articles 19 and 21 of the Constitution of India". (Emphasis supplied)

20. With the utmost respect, the Full Bench failed to notice the

opening words of Section 6(1) and (2) of the Passports Act. Insofar it is

relevant, Section 6 of the Passports Act reads as follows:

"6. Refusal of passports, travel documents, etc. - (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any country under clause (b) or clause (c) of sub- section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:--

              (a)     .... .... ....
              (b)     .... .... ....
              (c)     .... .... ....
              (d)     .... .... ....

(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub- section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:--

              (a)     .... .... ....
              (b)     .... .... ....
              (c)     .... .... ....
                      .... .... ....
              (i)     .... .... ......".

21. The Full Bench also did not notice Section 5(2) and (3) of the

Passports Act, which reads as follows:

"5. Applications for passports, travel documents, etc. and orders thereon. -

... .... .... ......

.... ..... ..... .....

..... ..... ..... .....

(2) On receipt of an application [under this section,] the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-

(a) issue the passport or travel document with endorsement or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or

(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or

(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.

(3) Where the passport authority makes an order under clause (b) or clause (c) of sub- section (2) on the application of any person, it shall record in

writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy". (Emphasis supplied)

22. The observations made by the Full Bench that except for the

four grounds mentioned in sub section (1) and nine grounds mentioned

in sub section (2) of Section 6, the passport officer could not refuse the

passport or travel documents on any other ground, clearly misses the

opening words of Section 6(1) and 6(2) "Subject to the other provisions

of this Act ..... ..... ......". Pertinently, the Full Bench also acknowledges

that the stand taken by the passport authority, to the effect that the

adoption was not valid, was correct. However, it directed issuance of a

passport on considerations of breach of Article 21 of the Constitution,

in case the passport was denied to the applicant.

23. An application for seeking issuance of a passport is required

to be made under Section 5(1) and on receipt of an application, the

passport authority is required to make his enquiry and thereafter pass

an order. He may either decide to issue the passport in terms of

clause (a) of Section 5(2), or to issue a passport with an endorsement,

or refuse to make an endorsement in respect of some countries in

terms of clause (b) of Section 5(2), or he may altogether refuse to

issue a passport under clause (c) of Section 5(2). In case he passes an

order under clause (b) and/or (c) of Section 5(2), he is required to

record brief reasons therefor. Therefore, if the details and particulars

mentioned in a passport application by an applicant are found to be

incorrect or deficient upon a scrutiny of the application and the

documents produced in support of it, the passport authority is not

obliged to issue a passport, merely because such a case may not be

covered by the ground contained in Section 6(1) or 6(2) of the

Passports Act.

24. Take, for example, a case where the applicant mentions his

wrong name, or wrong name of his parents; his incorrect address; his

incorrect date of birth and makes false declaration with regard to such

other information, as may be required to be furnished in the

application. It is quite possible that none of such information may

actually be covered by the grounds contained in clauses (a) to (d) of

Section 6(1) or clauses (a) to (i) of Section 6(2) of the Act. Does it

mean that the passport authority, despite finding such inaccuracies in

the application form, is obliged to issue a passport merely because the

ground contained in Section 6(1) and 6(2) are not made out? In my

view, the obvious and plain answer has to be a "No".

25. The Parliament deliberately used the words "Subject to the

other provisions of this Act" in Section 6(1) and 6(2) of the Act, to take

care of all such situations. In my view, what Section 6(1) and 6(2) of

the Act provide is that if the application of the applicant is otherwise

found to be complete and truthful in respect of the information

required to be provided in the application for issuance of a passport or

for seeking an endorsement thereon, the same may still be refused for

the grounds mentioned in Section 6(1) and 6(2) respectively.

Pertinently, the present cannot be even termed as a refusal to issue a

passport to the petitioner altogether. All that the petitioner has been

informed is to make correction in the information provided in the

application form and to resubmit the same.

26. The fundamental right available under Article 21, which

includes the right of locomotion and to travel abroad, is subject to

reasonable restrictions. It cannot be said that a citizen has a right to

obtain a passport by furnishing incorrect or wrong information with

regard to his name, age, address or parentage. He cannot claim that

non issuance of the passport with incorrect/false information is

infringing his fundamental right of locomotion or to travel abroad. In

my view, it cannot be said that the passport authority has no

jurisdiction whatsoever to go into the issue of correctness or otherwise

of the adoption deed, even in case where, on the face of it, the said

adoption deed appears to be in contravention of the law. The enquiry

that the passport authority is required to undertake under Section 5 of

the Passport Act is a serious enquiry. Such an enquiry cannot be done

cursorily or perfunctorily. If, during the course of the enquiry, it comes

to the notice of the passport authority that the documents provided by

the applicant did not support the claims made by the applicant in his

application for issuance of a passport, he would not only be entitled,

but would be duty bound to raise the issue with the applicant. A

passport is not only a travel document, but is also an identity

document. The identity of a person is determined, inter alia, by his

parentage. Therefore, unless there is a legal adoption of the applicant,

he/she is bound to give the name of his/her natural parents and cannot

choose to provide the name of the adopted parent(s) in his/her

application form.

27. I now proceed to consider the submissions of learned counsel

for the petitioner that the petitioner's adoption deed in favour of Shri

Surojit Chattoraj is valid. Sections 9(1) and 9(2) of the HAMA are

relevant and reads as follows:-

"9. Persons capable of giving in adoption.-

(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:

Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them has completely and finally renounced the word or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind."

28. From the aforesaid reading, it is clear that both parents of a

child, if alive, have equal right to give the child in adoption. Therefore,

the right of the petitioner's mother, Smt. Rajeshwari Chattoraj to give

the petitioner in adoption cannot be questioned. However, the law is

very clear that such right cannot be exercised by either of the parents

of the child "save with the consent of the other, unless one of them

has deliberately and finally renounced the world or has ceased to be a

Hindu or has been declared by a Court of competent jurisdiction to be

of unsound mind." Consequently, the consent of the petitioner's

natural father was required to give the petitioner in adoption to Surojit

Chattoraj. However, such consent would not be necessary if the

petitioner's natural father had, inter alia, "finally renounced the world".

29. The issue is whether, in the facts of this case, it can be said

that the petitioner's father, Shri Abhijit Ghosh has finally renounced the

world.

30. The petitioner has placed reliance on the meaning of the

expression "renounce" and "renounce the world" contained in the

Advanced Law Lexicon by P. Ramanatha Aiyer 3rd Edition 2007 Reprint.

"Renounce" is said to mean "to give up a right; surrender; abandon,

refuse to recognize any longer (as) to renounce treaty principles,

authority, heirship, etc. "Renounce the world" would mean "to

withdraw from worldly interests in order to lead a spiritual life."

Reference is made to Section 13(1)(vi) of the Hindu Marriage Act. The

expression "renouncing" means "making formal resignation of some

right or trust especially of one's position as heir or executor". The

Black's Law Dictionary Eighth Edition explains the expression

"renounce" to mean "to give up or abandon formally (a right or

interest); to disclaim (renounce an inheritance), to refuse to follow or

obey; to decline to recognize or observe (renounce one's allegiance)".

The Concise Oxford Dictionary of Current English defines the

expression "renounce" as "consent formally to abandon; surrender;

give up ( a claim, right, possession, etc); repudiate; refuse to recognize

any longer (renouncing their father's authority); a decline further

association or disclaim relationship with (renounced my former

friends); withdraw from; discontinue; forsake; refuse or resign a right

or position esp., as an heir or trustee". "Renounce the world" means

"abandon society or material affairs."

31. From the reading of aforesaid definitions and meaning, no

doubt, it could be said that the natural father of the petitioner, Shri

Abhijit Ghosh has renounced his rights and obligations qua, the

petitioner and the petitioner's mother renounced her rights qua the

natural father, Shri Abhijit Ghosh. But can it be said that the

petitioner's natural father has "renounced the world"?

32. In my view, on a plain grammatical and literal interpretation of

the said words, it cannot be said that the petitioner's natural father

Shri Abhijit Ghosh has renounced the world, as the renounciation of the

world by a person would involve and entail his severing his

relationships with all other human beings and would also entail the

giving up of all material wealth and pleasures.

33. In Madhusudhan Mohapatra Vs. Gobind Sabat and

Another, AIR 1965 Orrisa 54, the High Court takes note of an earlier

decision reported as Baldeo Prasad Vs. Arya Pritinidhi Sabha, AIR

1930 ALL 643, where the Court took the view that the mere fact that a

person declares that he has become a sanyasi or that he has described

himself as such, or wears clothes ordinarily worn by the sanyasis would

not make him a perfect sanyasi. He must not only retire from the

worldly interests and become dead to the world, but to attain this, he

must perform the necessary ceremonies without which the

renunciation will not be complete.

34. It is not even the petitioner's case that Shri Abhijit Ghosh has,

in that wider and natural sense, renounced the world. All that the

petitioner contends is that Shri Abhijit Ghosh, her natural father, has

not no concern with the petitioner any longer. Had the intention of the

legislature been to exclude the consent of that parent, who may have

cut off all his relationship with the minor child, on account of the

divorce obtained by the parents, the legislature would not have used

the expression "renounce the world" but would have used the words

like "severed his or her relationship with the minor child" instead. It is

not for this Court to read into the plain language used by the

legislature, words which are not there.

35. The petitioner's mother could not have secured the right, at

the time of her obtaining divorce from Shri Abhijit Ghosh, to claim that

the petitioner was not the naturally born child of her natural father,

Shri Abhijit Ghosh. The petitioner's mother also could not have taken

away the petitioner's right to claim that Shri Abhijit Ghosh is her

natural father. The petitioner's right to claim her status as the

daughter and an heir of Shri Abhijit Ghosh also could not have been

taken away by her mother by entering into a compromise with her

natural father. The rights which inhere in the petitioner on account of

her being a natural heir of her natural father continue to survive. The

identity of the petitioner is derived by the fact that the petitioner is the

naturally born child of her parents i.e. Shri Abhijit Ghosh and Smt.

Rajeshwari Ghosh, now known as Smt. Rajeshwari Chattoraj. The

settlement arrived at between the petitioner's parents at the time

when they obtained the divorce cannot be said to include an implied

consent by the petitioner's father to the giving in adoption of the

petitioner to any other person.

36. The decision relied upon by the petitioner in the case of

Maroti Vitthal Bhatwalkar (supra), though founded upon a different

factual matrix does support the petitioner's argument. However, I

have difficulty following the said decision in the light of the clear and

express language used in Sections 5 and 6 of the HAMA. These

provisions read as follows:-

"5. Adoptions to be regulated by this Chapter- (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.