Madhya Pradesh High Court
Devyani Nitish Bharadwaj (Minor) D/O ... vs Union Of India on 15 January, 2025
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WP No.403 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 15th OF JANUARY, 2025
WRIT PETITION No. 403 of 2025
DEVYANI NITISH BHARADWAJ (MINOR) D/O SHRI NITISH JANARDAN
BHARADWAJ AND SMT. SMITA NITISH BHARADWAJ AND OTHERS
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Naman Nagrath - Senior Advocate with Shri Kapil Duggal -
Advocate for petitioner.
Shri Devesh Bhojne - CGSC for respondents No.1 and 2.
Shri Shreyas Pandit - Advocate for respondent No.3 alongwith Shri Nitish
Bhardwaj - Respondent No.3.
ORDER
Per: Justice Vinay Saraf
1. Petitioners are minor daughters of respondent No.3. Petitioners
through their mother applied to Regional Passport Office, Bhopal, Ministry
of External Affairs for renewal of their passports.
2. After receipt of application, the Regional Passport Office, Bhopal
issued a communication to the father of petitioners i.e. respondent No.3 and
as respondent No.3 in the reply to communication not only refused to
extend the consent for rrenewal
enewal of passport of the childre
children, has strongly
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objected for issuance of passport
passports to his minor daughters. The Assistant
Passport Officer by impugned communicated dated 08.11.2024 asked the
mother of petitioners to obtain the Court permission for issuance of
passport to minor children.
3. It is an admitted position that father of the children applied before
Family Court, Mumbai for obtaining a decree of divorce against the mother
of petitioners and the matter is still pending before the Family Court,
Mumbai wherein the issue of custody of minor children is also pending.
After receipt of impugned communicatio
communicationn from the Passport Office, the
mother of children submitted an application to the Family Court, Mumbai
at Bandra on 18.11.2024 requesting authorization for renewal of passport of
her children. Copy of the application was supplied to father of children and
case has been fixed for hearing upon application on 18.01.2025.
4. Thereafter, one purshis was moved on behalf of mother of the
petitioners before Family Court, Mumbai to not press the application
moved on 18.11.2024 wherein it is mentioned that she intends to file an
appropriate petition seeking inten
intended relief before the High Court of
Madhya Pradesh at Jabalpur. That withdrawal application will be
considered by Family Court Mumbai on the next date of hearing i.e.
18.01.2025.
5. In the meanwhile, petitioners through
through their mother and natural
guardian Smt. Smita Bharadwaj has approached this Court by present
petition on 07.01.2025 seeking the following relief:-
relief:
"(a)
(a) Issue a writ of certiorari quashing the impugned order dated
08.11.2024 passed by Respondent No.2.
(b) To issue a writ of mandamus directing respondent No.2 to renew the
passport of the petitioners forthwith.
(c) To award the cost of the present litigation in favour of the petitioner.
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(d) Any other order writ or direction that this Hon'ble Court may deem
fit in the interest of justice
justice"
6. This Court on 08.01.2025 considering the urgency, issued notice to
respondent No.3 (father of petitioners) and ordered to list the case on
10.01.2025, when counsel for respondent No.3 appeared and sought short
adjournment and as the case is listed today.
7. Learned Senior Advocate appearing on behalf of petitioners submits
that every citizen of India is having Fundamental Right to obtain passport
and travel as per his own wish. The Supreme Court has extended the scope
of Article 21 by holding that the right to life and personal liberty includes
the right to travel abroad. He further submits that the petitioners have
achieved several awards and they have been invited Bharat Mahotsava
scheduled to take place in the House of Lords,, United Kingdom for special
ook promotion on 14th Fabreuary and on 17th February at
facilitation and book
University of Oxford during Bharat Mahotsav scheduled to take place from
February 14th to 17th, 2025 in London Kingdom.
8. Learned Senior Advoca
Advocate
te further submits that the invitation is
annexed as Annexure P
P-33 with petition which contends the details of
program and for the purpose of attending the said program
program, the petitioners
are in need of valid passport which are going to be expired on 16.01.2025.
16.01.20
He further submits that upon the application submitted for renewal of
passport, the Passport Office, Bhopal has erroneously issued the impugned
communication to the mother of petitioners for obtaining
obtaining Court permission
for the purpose of renewal of passport
passport of minor children. He submits that
as per the Annexure-C
Annexure C annexed to the application for renewal of passport,
there is a provision that a single parent may apply for renewal of passport,
if there is no prohibitory order issued by any competent Court. The mother
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of petitioners submitted a declaration in the form of Annexure-C
Annexure declaring
that there is an ongoing court case for divorce and custody of minor
children and the compete
competent
nt Court has not given any prohibitory order to
issue passport without consent of the father.
9. Learned Senior Advocate further submits that as there is a provision
to submit the declaration
decla in the form of Annexure-C,, the Passport authority
is under obligation to accept the same and renew the passport. He further
submits that once the aforesaid declaration is submitted by the mother of
petitionerss in the form of Annexure-C,
Annexure , the same is required to be acted
upon and the Passport Authority cannot ask for obtaining the permission of
the Court. Learned Senior Advocate has heavily relied upon the judgment
delivered by Division Bench of Bombay Hig
Highh Court in the matter of Miss
Yushika Vivek Gedam vs. Union of India & ors. in WP No.19042/2024
decided on 08.01.2025 wherein in the similar circumstances, the Division
Bench of Bombay High Court has issued direction to Passport Authority to
issue the passport of minor child without insisting upon the consent of
father or Court permission.
10. The relevant paras of the said judgment read as under:
under:-
"2. The grievance of the petitioner is against respondent No.2 - the
Regional Passport Officer, who has issued
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
re issuing passport to
the petitioner.
petitioner
12. The contention of respondent no. 2 is that the petitioner's mother
alongwith the petitioner's passport application submitted a declaration
in Annexure-D,
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
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impugned communication was issued by respondent no. 2 calling upon
the deficiency to be complied
c by obtaining
taining the father's signature.
13. In such circumstances, the petitioner's mother also additionally
submitted a declaration in Annexure-C
Annexure C dated 29 October, 2024, being a
declaration required to be submitted by "applicant's parents or guardian
for 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 ggiven
iven any order prohibiting the
issue of passport without the consent of the father/ mother.
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
Anne 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
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/re-issuance
issuance of passport to the
petitioner. Also, except for stating that he refuses NOC, the petitioner's
petitione
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 C in clause (II)(b), (d) and (e) as highlighted
by us is relevant which deals with different situations
ituations 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 the parents of a minor child
who has made de 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 als
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
well 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
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issued/re-issued
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 mot has
submitted a declaration in Annexure-C, C, which is now required to be
considered and processed by respondent no. 2.
22. It is well-settled
well settled that the expression "person liberty" which occurs in
Article 21 of the Constitution includes right to travel abroad
ab 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 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 t 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 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 re-issuance of passport to the petitioner
when the declaration in Annexure-C C was submitted by the petitioner's
mother.
25. We accordingly dispose of the petition in terms of the following
terms:
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(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-
petitioner
Ms.Yushika Vivek Gedam under her application No.
PN1070298980424submitted by her mother - the natural guardian
(iii) The passport be granted to the petitioner within a period of two
weeks from today in accordance
accordanc with law."
11. Learned Senior Advocate prays for quashment of impugned
communication issued by Passport Officer as well as issuance of direction
to renew the passport of petitioners expeditiously.
12. Per contra, respondent No.3 who appeared in person, opposes the
application on the ground that earlier also efforts were made by the mother
of petitioners to obtain the permission from the Family Court. He submits
that the documents filed alongwith petition are suspicious as Bharat
Mahotsav, 2024 has alread
alreadyy been organized in the year 2024 and is not
scheduled to be organized in February, 2025. He submits that there are
serious disputes in respect of custody of minor children and for the purpose
purpos
of taking away the children from the father, the mother has moved
mov an
application on the basis of false documents. He has raised serious
objections in respect of reasons
reason assigned by the petitioner in the petition
and submits that once the application is pending
g before Family Court,
Mumbai, during pendency of the application,
application, this petition is not
maintainable. He has drawn the attention of this Court towards various
documents downloaded by respondent No.3 through internet to
demonstrate that the alleged Bharat Mahotsav,, 2024 is not scheduled in
February,
bruary, 2025 and the documents filed by the petitioners as Annexure P
P-3
and additional document i.e. IA(1) filed alongwith IA are false, forged and
fabricated documents. He further submits that possibility of the petitioners'
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mother taking away the children to a foreign land for
for admission to some
foreign school cannot be ruled out. He submits that the existence of
pending custody case before the Family Court is a significant factor and the
same indicates an ongoing dispute regarding the guardianship and welfare
of the petitioners.
rs. He prays for dismissal of the petition.
13. Learned standing counsel on behalf of respondents No.1 and 2
submits that the impugned communication has been issued by the Passport
Authority after considering the objection raised by the father of minor
children.
ildren. He further submits that as per procedure, when the application
was received without consent of father of minor children, the same is
required to be communicated to the father for giving his consent and when
the father raised objection,
objection as per the directions
irections issued by the Ministry, the
Passport Officer has issued impugned communication to the mother for
obtaining the Court permission. He further submits that if Court will issue a
direction for renewal of passport without consent of the father, the Pa
Passport
Officer will honour the order of the Court.
14. Considering the arguments advanced by the parties and considering
the fact that the petitioners who are having very impressive academic
record and achieved several awards and appreciation from various
dignitaries including Prime Minister of India, without commenting upon
genuineness of the documents, this Court is examining
ing only legal issue that
whether passport can be renewed without consent of the father of minor
child, if there
here is no prohibitory order from any competent Court. All the
issues in respect of the invitation from House of Lords or Oxford
University or Bharat Mahotsava,
Mahotsava 2024 are not required to be considered in
the present petition and respondent No
No.3 will be at liberty
iberty to raise th
these
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issues including allegation of alleged forgery and genuineness of
documents before the Family Court, Mumbai, if he wishes
wishes.
15. As per the passport rules, in case one of the parent of the minor child
has not given consent for issuance of passport, the parent who has applied
for passport is required to submit declaration in the form of Annexure (C)
which reads as under :-
:
"ANNEXURE 'C'
SPECIMEN DECLARATION BY APPLICANT'S PARENT OR GUARDIAN FOR ISSUE
OF PASSPORT
TO MINOR WHEN ONE PARENT H HAS
AS NOT GIVEN CONSENT
(On plain paper)
I/we .......... (name of the parent / guardian applying for passport) resident Of
........ solemnly nly declare and affirm as under :-
(I) That I/we am/are the mother/father/parents/quardians
mother/father/parents/quardians of ..................
(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. ................ (name of the father/mother)
who is the father/mother/parents of the child has not been obtaine obtained by me for
the following one or more reasons:-
reasons:
(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 orderr 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
ilable 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.
(lll) That we only am/a
am/are
re taking Care of ................. (name of the minor child)
and he/she is exclusively in my/our physical custody
(IV) I/we also affirm that in the case of a court case arising due to issue of a
passport to the minor child ................ (name of the minor child), I/we wou would
be solely responsible for defending the case and not the Passport Issuing
Authority.
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Signature of the parent(s)
Guardian(s) applying for the Passport
Date: Place:
Name(S):
(S): ......................................................
Aadhaar Card No...............................................or
Voter ID Card No. ........................................ Or
Passport No. ..........................................."
...........................................
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
(supra) the present petition is allowed to the
Yushika Vivek Gedam (supra),
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
dwaj and Miss Shivaranjani
Nitish
sh Bharadwaj upon the application which is already submitted
by them through
thr their mother after considering declaration
submitted by her in the form of Annexure (C).
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(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.
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. Iff 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
to in
accordance with law.
18. With the aforesaid, the writ petition is disposed of.
19. Certified copy today.
(VINAY SARAF)
JUDGE
J
vibha
VIBHA PACHORI
2025.01.15
18:51:39 +05'30'
