Mohit Gupta (Minor) vs Regional Passport Office, Govt. ...
2015 Latest Caselaw 7288 Del

$~51
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 23rd September, 2015

+                         W.P.(C) NO. 9156/2015
       MOHIT GUPTA (MINOR)                                    ..... Petitioner
                   Through:              Mr. K. Venkatraman, Adv.

                                 Versus

       REGIONAL PASSPORT OFFICE, GOVT. OF INDIA,
       MINISTRY OF EXTERNAL AFFAIRS          ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

CM No.20862/2015 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

W.P.(C) No.9156/2015 & CM No.20863/2015 (for directions)

3. The petition impugns the decision contained in the letter dated 3rd

August, 2015 of the respondent Regional Passport Office, Government of

India, New Delhi to the effect that passport cannot be issued to the petitioner

without the name of the biological father of the petitioner and directing the

petitioner that if the petitioner wishes the name of his step father to be

mentioned, to furnish the proper adoption deed. Axiomatically a mandamus

is sought to the respondent to issue a passport to the petitioner without

insisting on including the name therein of the biological father of the

petitioner and by inserting the name of the step father of the petitioner in the

column of name of father in the passport.

4. It is the case of the petitioner:

(i) that the petitioner's mother was married to Mr. Kapil Gupta on

14th September, 1997 and out of which wedlock the petitioner

was born on 1st June, 1998;

(ii) that the marriage of the biological parents of the petitioner was

dissolved by a decree of divorce dated 25th February, 1999 and

as per the compromise arrived at between the biological parents

of the petitioner, the custody of the petitioner has remained with

his mother only and the mother of the petitioner is solely

responsible for maintenance and upbringing of the petitioner;

(iii) that on 08th July, 2008, the mother of the petitioner remarried

and the petitioner since then has been residing with his mother

and her husband, i.e with the step-father;

(iv) that the petitioner applied for passport including the name of his

step-father as the name of the father of the petitioner;

(v) that the respondent has however vide impugned letter dated 03 rd

August, 2015 turned down the request of the petitioner for

including the name of his step-father as his father in the

passport.

The petitioner along with the petition has filed his Aadhar Card and

the certificate issued by the Central Board of Secondary Education of the

Secondary School Examination taken by the petitioner in the year 2014

showing the name of the step-father as father of the petitioner.

5. Not finding any plea in the petition, of the petitioner having been

adopted by his step-father, and rather it being the plea of the petitioner that

the demand of the respondent in the impugned letter aforesaid of deed of

adoption of the petitioner is misconceived since the petitioner is now 17½

years of age, I have straightaway enquired from the counsel for the petitioner

as to how a direction to the respondents can be given by this Court in

exercise of powers under Article 226 of the Constitution of India to, in as

important a document of identity as passport, to show the name of his step-

father as his father when in law he is not the father of the petitioner.

6. The counsel for the petitioner instead of arguing legally, has drawn

attention to the judgment dated 31st July, 2014 of a co-ordinate bench of this

Court in W.P. (C) No. 3582/2014 titled Kavneet Kaur Vs. Regional Passport

Office where, in a similar situation, direction was issued for issuance of a

passport reflecting the name of the step-father as the father.

7. I have perused the said judgment. The only reasoning which can be

deciphered for issuing such a direction is, (i) the sentiment of the petitioner

in that case, not to have the name of his biological father reflected in the

passport; and, (ii) the confusion and complication which was likely to arise

by mentioning the name of the biological father in the passport as in all other

documents except birth certificate, the name of the step-father was shown as

the father.

8. I am of the view that this Court, under Article 226 of the Constitution

of India is not vested with a power to change the father of any person. The

word 'father', in law, has a definite connotation and is distinct from a step-

father. The relationship of father is governed by the biological phenomena of

birth and the High Court, under Article 226, whatsoever may be the reasons,

cannot substitute the step-father for father.

9. A step-father, is not father. The Hindu Minority & Guardianship Act,

1956, applicable to the petitioner, vide Section 6 thereof constitutes the

father as the natural guardian of a minor. The explanation thereto provides

that the expression father does not include a step-father.

10. Supreme Court in Kirtikant D. Vadodara Vs. State of Gujarat (1996)

4 SCC 479, in the context of use of the word father in Section 125 of the

Code of Criminal Procedure 1973 held that it did not include step-father. An

old decision of the Division Bench of the Bombay High Court in Baidaya

Vs. Natha Govindlal ILR (1885) 279 holding on the basis of text by Manu &

Mitakshara that mother means natural mother and only in secondary and

figurative sense could mean step-mother was followed. The Supreme Court

reasoned that when under the Old Hindu Law mother meant biological

mother only, it will be difficult to assume that the legislature, while enacting

the New Code of 1973 was unmindful of social fabric and structure of

relationship in the family.

11. Similarly, in the matter of succession, under the Hindu Succession

Act, 1956, a step-son, as the petitioner would be of his step-father, is not

included in the meaning of son under the various provisions thereof.

Reference in this regard can be made to Lachman Singh Vs. Kripa Singh

(1987) 2 SCC 547, where it was held that had the legislature intended that

son should include step-son also, then it would have said so in express terms

and to Raj Rani Vs. Bimla Rani AIR 2011 Delhi 170. I may add, the term

father and mother have a clear reference under the Hindu Succession Act to

natural father and mother as contradistinguished from step-father and step-

mother. Under the table of heirs in schedule to the Act, in Class II, step-

mother has been put in Entry VI under father's widow, whereas natural

mother has been put in class I heir in the said Schedule. Mulla, in his treatise

on Hindu Law 21st Edition also has opined that a step-father is not entitled to

succeed to the property of the step-son.

12. Thus in law, step-father is not father. The only way the law permits a

relationship of father and son, as the petitioner has with his biological father,

to be changed, is by way of adoption. Since the petitioner professes to be a

Hindu, he would be governed by Hindu Adoption and Maintenance Act,

1956 and as per Section 12 of which an adopted child shall be deemed to be

the child of his or her adoptive father or mother for all purposes, with effect

from the date of the adoption and from such date all the ties of the child in

the family of his or her birth shall be deemed to be severed and replaced by

those created by the adoption in the adoptive family. In this context it may be

noticed that Section 3 (20) of the General Classes Act, 1897 also provides

that father, in the case of any one whose personal law permits adoption shall

include an adoptive father.

13. Passport, as aforesaid, is an important document of identity and

treating the information wherein to be authentic other persons may deal with

the petitioner. This Court, in exercise of writ jurisdiction, cannot direct the

respondent to issue a passport showing the name of the step father of the

petitioner as that of the father of the petitioner. Howsoever wide the powers

of this Court under Article 226 may be, they do not extend to they changing

the parentage or to direct a person other than father being declared in an

official document as the father of the petitioner. This Court, even under

Article 226 cannot issue directions contrary to law or direct an authority to

act in contravention of statutory powers. Reference if any required in this

regard can be made to Maharishi Dayanand University Vs. Surjeet Kaur

(2010) 11 SCC 159 and following by a Division Bench of this Court in

Sankalp Charitable Trust Vs. Govt. of NCT of Delhi

MANU/DE/1377/2014. Issuing a direction to the respondent to show the

name of step father of the petitioner as the father of the petitioner would in

my opinion amount to issuing a direction contrary to law.

14. The Division Bench of this Court in Teesta Chattoraj Vs. Union of

India 2012 SCC online Delhi 2776 had occasion to deal with a similar

controversy. In that case, the mother of the petitioner on dissolution of her

marriage with the father of the petitioner was similarly vested with the

custody of the petitioner and on remarriage had given the petitioner in

adoption to herself and her husband and on that basis application for

issuance of a passport showing the name of the husband of the mother as

father of the petitioner was filed. The Ld. Single Judge not only dismissed

the writ petition but also declared the registered adoption deed to be void for

the reason of having been executed without the consent of the biological

father of the petitioner. In appeal, on an interpretation of the terms of

compromise arrived at between the biological parents of the petitioner at the

time of dissolution of their marriage, it was held that the biological father of

the petitioner had renounced the guardianship in the petitioner and

accordingly the mother of the petitioner was entitled to give the petitioner in

adoption as had been done and the petitioner had been validly adopted. In

this view of the matter the appeal was allowed.

15. As would be obvious from above, the facts of the present case are

different. Here, there is no adoption deed also and in the absence of which

the husband of the mother remains the step father of the petitioner and does

not become the father.

16. I find that another single judge of this Court in Vibhu Kalra Vs.

Regional Passport Office 2015 SCC online Delhi 8868 and following

Kavneet Kaur supra and without noticing the dicta of the Division Bench in

Teesta Chattoraj supra has also issued similar directions as are sought by the

petitioner herein.

17. I also find a single judge of the Madras High Court in V. Mathi

Nithya Vs. the Regional Passport Officer MANU/TN/2493/2015 noticed an

earlier judgment of that High Court in BS Deepa Vs. Regional Passport

Officer MANU/TN/0085/2015 issuing directions to the Ministry of External

Affairs to come up with innovative steps and measures to resolve problems

of this nature inter alia by amendment of the Passport Manual to incorporate

an additional column for name of step parents, wherever applicable.

18. Obviously no action has been taken on the aforesaid suggestion.

19. However, finding a coordinate bench to have taken a different view, I

am but obliged to place this matter before Hon'ble the Chief Justice for

having the subject issue considered by an appropriate bench so that a finality

is attained to an issue which appears to be arising frequently.

20. Accordingly, place before the appropriate bench as may be directed by

Hon'ble the Chief Justice, on 3rd November, 2015.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 23, 2015 sr