Kerala High Court
Johan Philip James vs Union Of India on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
WP(C) NO. 20895 OF 2021
PETITIONERS:
1 JOHAN PHILIP JAMES
AGED 7 YEARS, S/O. JAMES GEORGE,
KALEECKAL KIZHAKKETHIL HOUSE,
MEMURY KARA PAMPAKKUDA P. O., PIN - 686667,
REPRESENTED BY HIS NEXT FRIEND AND GRANDMOTHER -
MARY VERGHESE
AGED 62 YEARS, WIFE OF LATE BABU JOHN,
KALEECKAL KIZHAKKETHIL HOUSE,
MEMURY KARA, PAMPAKKUDA P. O., PIN - 686667,
ERNAKULAM DISTRICT.
2 SERAH ANN JAMES
AGED 9 YEARS, D/O. JAMES GEORGE,
KALEECKAL KIZHAKKETHIL HOUSE,
MEMURY KARA, PAMPAKKUDA P. O., PIN - 686667,
REPRESENTED BY HER NEXT FRIEND AND GRANDMOTHER -
MARY VERGHESE
AGED 62 YEARS, WIFE OF LATE BABU JOHN,
KALEECKAL KIZHAKKETHIL HOUSE,
MEMURY KARA, PAMPAKKUDA P. O., PIN - 686667,
ERNAKULAM DISTRICT.
3 MARY VERGHESE
AGED 62 YEARS, W/O. LATE BABU JOHN,
KALEECKAL KIZHAKKETHIL HOUSE,
MEMURY KARA, PAMPAKKUDA P. O., PIN - 686667,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.ABRAHAM P.GEORGE
SMT.M.SANTHY
W.P.(C) No.20895/21
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RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF EXTERNAL AFFAIRS,
GOVERNMENT OF INDIA,
NEW DELHI, PIN - 110 001.
2 REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICE,
KOCHI, PIN - 682036,
ERNAKULAM DISTRICT.
3 JAMES GEORGE
AGED 42 YEARS, S/O. P.I. GEORGE,
PADIPURAYIL HOUSE,
VETTIPPURAM, PATHANAMTHITTA P. O.,
PIN - 689645.
BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.20895/21
-:3:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.20895 of 2021
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Dated this the 9th day of November, 2021
JUDGMENT
Two minor children have approached this Court through their
maternal grandmother seeking a direction for renewal of their passports.
Petitioners 1 and 2 insist that the passports should be renewed without
the consent of their father.
2. The mother of petitioners 1 and 2 is now studying in New
Zealand under a student Visa and contends that she is entitled to take her
family to New Zealand. Unfortunately, her husband-father of the children
objected and hence, an original petition was filed before the Family Court,
Muvattupuzha as O.P. No.257 of 2019 seeking a direction to take the
minor child along with her to New Zealand during her higher studies. In
the meantime, the father of the minor children filed a petition for restitution
of conjugal rights by filing O.P. No.604 of 2019 as well as a petition for
custody of the minor children as O.P. No.706 of 2019.
3. The dispute between the parents were finally settled and a
compromise petition was filed before the Family Court on 30.11.2019. It
W.P.(C) No.20895/21
was decided that they will start residing together as husband and wife
along with their children and further that the maternal grandmother will
take custody of the minor children when the mother leaves for higher
studies to New Zealand. The terms of the compromise further provided
that the mother can apply for Visa for her minor children to take them to
New Zealand and even to get admission for them at New Zealand. For
the purpose of better clarity, clauses 5 to 8 of the compromise petition are
extracted as below:
"5. The petitioner and respondent hereby agree that minor children
will continue their studies in this academic year in their respective
classes at M.T.M. Higher Secondary School, Pampakuda. The
respondent agree that the petitioner can apply for visa in the name
of Serah Ann James and Johan Philip James - Minor children and
take them to New Zealand on receiving visa and admit them in the
school at New Zealand and to continue their studies therein
6. The mother of the petitioner shall take custody of the minor
children and shall provide proper care from the day on which the
petitioner leave India till the minor children join her in New
Zealand. It is agreed that the respondent will be permitted to take
the children on the second Saturday of every month and he will
given custody of children for the day from the family Court
premises at 10am and he will return the children by 2pm on the
same day. In the absence of the petitioner her mother will
produce the children and receive back children for and on behalf
of the petitioner. The arrangement will be continued till the miner
children leave to New Zealand on availing visa.
W.P.(C) No.20895/21
7. The petitioner and respondent together decide that on reaching
New Zealand the petitioner would apply for spouse visa as
permitted under emigration laws and would take steps for
obtaining visa for the respondent also to New Zealand. The
respondent hereby agree that before April 2019 he will try to
qualify IELT exam enabling him to obtain a job at New Zealand
and will make his best efforts to go along with the children in the
month of April 2019 itself.
8. The petitioner and respondent fully understand that they are
taking the above decision with an intention to save their marriage
and also for the better interest of their minor children."
4. Petitioners 1 and 2 contend that though their mother left for New
Zealand in January, 2020, they could not travel due to the restrictions
imposed by Covid-19 pandemic and that now, as the restrictions have
been relaxed, they intend to join their mother. In the meantime, the
validity of the passport expired on 26.06.2021 and when they applied for
renewal of the passport, the passport issuing authority is refusing to act
upon the recitals in the compromise petition and the consequent decree of
the Family Court, which has compelled them to file this writ petition.
5. When the writ petition came up for admission, this Court issued
notice by special messenger to the third respondent, who is the father of
the minor children. Even after service of notice, there is no appearance
for the third respondent and therefore this writ petition is considered
W.P.(C) No.20895/21
having regard to the urgency of the reliefs claimed.
6. As evident from the terms of the compromise petition, which
became part of the decree of the Family Court in O.P. No.257 of 2019, the
minor children namely, Johan Philip James and Serah Ann James were
permitted to travel to New Zealand along with their mother and to get
admission in a school in New Zealand to continue their studies therein. It
is further clearly spelt out in the terms of compromise that the visitorial
rights or the custodial rights of the father to have the children with him for
four hours during the second Saturday of every month, will be available
only till the time the minor children leave for New Zealand and that these
decisions were taken in the better interests of the minor children.
7. The terms of the compromise petition clearly reveals that the
third respondent had no objection in the minor children being taken to
New Zealand and to have their studies continued abroad and further that
the said arrangement suits the better interests of the minor children.
When the aforesaid consent of the father of the minor children became
part of the terms of the compromise decree, there is no reason for the
passport issuing authority to ignore the same and insist on a separate
specific consent from the father.
8. In this context, the provisions of the Passport Act and its Rules
provide for circumstances where a passport can be issued to a minor,
W.P.(C) No.20895/21
when one parent has not given his consent. The form to be submitted, in
such instances, is prescribed under Annexure 'C'. Various reasons are
stipulated as to when an application can be submitted for issuance of a
passport of a minor, without the consent of both parents. Those
conditions are extracted as below:
(a) The father/mother of the minor applicant is travelling abroad/is
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.
W.P.(C) No.20895/21
9. A reading of clause (b) of Annexure 'C' shows that even when
there is no court case pending, one of the parent can make an application
without the consent of the other parent.
10. During the course of arguments, it was submitted by learned
counsel for the petitioners that, the practical difficulty in obtaining consent
from the father is his indifference and his hesitancy to accord a positive
response to the requests. This approach is evident from his non-
appearance before this Court also even after service of notice. It is also
submitted that, though the third respondent has originally informed that he
has no objection in the minor children travelling to New Zealand, he will
not expressly sign any papers or initiate any action to enable such a travel
if the mother is able to manage them and that from his overt actions, it is
clear that he has no objection in taking the children abroad.
11. On a perusal of the pleadings and also on account of the
circumstances that has arisen in the instant case, this Court is of the
opinion that the minor children ought to be issued with a passport even in
the absence of consent of their father. To enable such a grant, it is
necessary that the applicant for the passport submits Annexure 'C' signed
by one of the parent or guardian of the minor children, as the case may
be.
12. Accordingly, there will be a direction to the second respondent
W.P.(C) No.20895/21
to accept the application submitted by petitioners 1 and 2, if the same are
accompanied by the necessary declaration as prescribed in Annexure 'C'
and thereafter consider and process the application without insisting on
the consent of the father. The same shall be done at the earliest on
receipt of the application as directed.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
W.P.(C) No.20895/21
APPENDIX OF WP(C) 20895/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF
THE PASSPORT OF THE 1ST PETITIONER.
EXHIBIT P2 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF
THE PASSPORT OF THE 2ND PETITIONER.
EXHIBIT P3 TRUE PHOTOCOPY OF DECREE PASSED BY THE
HON'BLE FAMILY COURT AT THE MUVATTUPUZHA
IN O.P.NO.257/2019 DATED 02.12.2019.
EXHIBIT P4 TRUE PHOTOCOPY OF THE ONLINE APPOINTMENT
RECEIPT AND RELEVANT PAGES OF THE
APPLICATION FOR RENEWAL/REISSUE OF THE
PASSPORT SUBMITTED BY THE 1ST
PETITIONER.
EXHIBIT P5 TRUE PHOTOCOPY OF THE ONLINE APPOINTMENT
RECEIPT AND RELEVANT PAGES OF THE
APPLICATION FOR RENEWAL/REISSUE OF THE
PASSPORT SUBMITTED BY THE 2ND
PETITIONER.
W.P.(C) No.20895/21
