Smt. L. Deepika vs The Union Of India And 2 Others
2022 Latest Caselaw 5080 Tel

                THE HON'BLE SRI JUSTICE K. LAKSHMAN


                        WRIT PETITION No. 31096 of 2022


ORDER:

Heard Sri V.V. Ramana learned counsel for the petitioner, Sri Angothu

Nehru, learned counsel for the respondents.

2. This writ petition is filed seeking a direction to respondent to issue Passport

to the petitioner's minor son Master Gajula Reyansh by considering his application

dated 22.12.2021 without insisting for consent from the minor's father in terms of

Passport manual 2020, Chapter-9, paragraph No. 4 (4.6) or an order from the

competent court. Petitioner is also seeking a consequential direction to the

Passport authority to issue Passport to her minor son.

FACTS OF THE CASE:

3. Petitioner is the wife of 3rd respondent. They are blessed with a son namely,

Master Gajula Reyansh. Thereafter, matrimonial disputes arose between them.

4. Respondent No.3 had filed a petition, against the petitioner seeking

dissolution of marriage on the ground of cruelty, vide F.C.O.P.No.253 of 2020, the

said O.P. is pending.

KL,J WP.No.31096 of 2022

5. According to the petitioner, she is working in Tata Consultancy Services,

I.T. Department and her office officials are insisting her to work at abroad for

some time. She had a valid Passport, but her minor son is not having Passport. She

applied Passport of her minor son on 22.12.2021. She has already submitted all the

documents as sought by 2nd respondent.

6. Vide letter dated 29.03.2022, 2nd respondent had informed the petitioner, that

they cannot process the Passport application submitted by the petitioner without

the consent of the other parent, since there is divorce application is pending. The

2nd respondent has also advised the petitioner alternatively to furnish permission

from the Court to apply for Passport of her minor child without consent of other

parent of the child. The 2nd respondent had also referred to the Passport Manual

2020.

7. Challenging the said proceedings, the petitioner herein filed present writ

petition. Despite service of notice, there is no representation on behalf of 3rd

respondent.

8. Learned counsel for the petitioner would submit that, it is practically

impossible to obtain consent from deserted husband. The 3rd respondent had not

filed any petition seeking custody of the minor. The 3rd respondent is not bothered

to maintain the minor son. Even then the 2nd respondent is insisting the petitioner

KL,J WP.No.31096 of 2022

to submit the consent of 3rd respondent. According to her, the action of respondent

No.2 in insisting to submit consent of 3rd respondent or obtain permission from the

court is illegal, contrary to the Passport Manual 2020 and also the procedure laid

down under the Passports Act and Rules made there under. Learned counsel for the

petitioner has also placed reliance on the judgments of High Court of Kerala and

Madras High Courts.

9. Whereas, learned counsel appearing for respondent No. 2 would submit that,

in view of the pendency of the aforesaid divorce petition and as per the Passport

manual, the petitioner has to either submit consent of 3rd respondent or obtain

permission from the Court where the said F.C.O.P. is pending. The same was

informed to the petitioner vide letter dated 29.03.2022. There is no error in it.

10. Paragraph No. 4 (4.6), Chapter-9 of Passport Manual 2020, says that

"Divorce Pending Cases: "In case of divorce is still pending before the Court, the

PIA shall insist on consent of both the parents. Alternatively, the applicant's parent

should furnish or obtain permission from the Court to apply for a Passport for the

child without the consent of the other parent of the child. In pending divorce cases,

where the single parent with child is already working/staying abroad, the child

requires a Passport for its continued stay in abroad. In such a situation, the

Mission/Post may issue a two year short validity Passport to the child, at a time,

KL,J WP.No.31096 of 2022

pending court permission for issue of a regular Passport or direction for custody of

the child". In the written instructions dated 26.08.2022, the 2nd respondent has

reiterated the aforesaid facts.

11. The aforesaid facts would reveal that, there are matrimonial disputes

between the petitioner and 3rd respondent. She is having valid Passport. She wants

to travel abroad on office duty, since her superiors asking her to go abroad on

official purpose. Therefore, she has applied for issuance of Passport for her minor

son on 22.12.2021. Admittedly there are no criminal cases pending against the

petitioner herein. Respondent No.3 had filed the aforesaid F.C.O.P.No.253 of 2020

against the petitioner seeking dissolution of marriage on the ground of cruelty and

the same is pending before Family Court. The 3rd respondent has not filed any

petition, seeking custody of minor and the 3rd respondent has also not filed any

petition seeking guardianship. The only proceeding that is pending is the aforesaid

F.C.O.P.No.253 of 2020.

12. It is also relevant to note that the petitioner has already submitted all the

documents including Annexure-C specified declaration of applicant's parent or

guardian for issue Passport to minor when one parent has not given consent.

KL,J WP.No.31096 of 2022

13. In Juvairiya v. Regional Passport Officer1 High Court of Kerela

considered the issuance of Passport on consent not being obtained from the other

parent and held that if the affidavit as required under the Passport Rules, 1980 is

submitted, then necessarily Passport officer would have to issue Passport in the

name of the minor child.

14. Relying on the said principle High court of Kerela in Rabeeha v. Ministry

of External affairs, Regional Passport Officer 2 reiterated the said principle.

15. In another judgment in Chaitnya S.Nair v. Union of India3, High Court of

Kerela reiterated the said principle.

16. As stated supra, the petitioner herein had submitted the aforesaid

undertaking in Annexure-C, disclosing about pending of the aforesaid case and she

is also taking responsibility with regard to the aforesaid court cases.

17. It is relevant to note that in Schedule III of Passport Rules 1980, it is

stipulated, where the applicant parent is not in a position to get consent of the other

parent, for whatever reason, the parent applying for Passport of the minor may sign

the form (application form) and submit a sworn affidavit as per Annexure-C.

. (2014) 1 (K) ALT 1990

. (2015) lawsuit (K) 722

. WP(C)No.22555 of 2021, dated 08.03.2022

KL,J WP.No.31096 of 2022

18. In the Rules and also in the aforesaid Annexures, there is no mention that the

petitioner has to obtain permission from the court on the ground that the other

spouse is not giving consent. What is required is that the petitioner shall submit

undertaking in Annexure-C which the petitioner herein had already submitted. As

stated above there are matrimonial disputes between the petitioner and 3rd

respondent. He had filed the aforesaid F.C.O.P.No.253 of 2020 seeking dissolution

of marriage on the ground of cruelty. Therefore, it is practically impossible for the

petitioner to get the consent of the 3rd respondent, due to the aforesaid strained

relations between them. However, she had submitted the aforesaid undertaking in

Annexure-C. She has specifically stated that she will take responsibility with

regard to the aforesaid case. Admittedly there is no crime pending against the

petitioner and 3rd respondent has also not filed any custody petition or guardianship

petition.

19. In view of the aforesaid discussion, the impugned proceedings dated

29.03.2022 are illegal and also contrary to the Passport Rules and the principle laid

down by High Court of Kerala in the aforesaid judgments. Therefore, the same are

set aside. The 2nd respondent is directed to consider the application submitted by

the petitioner dated 22.12.2021 and issue Passport to the minor son of the

petitioner.

KL,J WP.No.31096 of 2022

As a sequel, miscellaneous petitions, if any, pending in the writ petition shall

stand closed.

_______________ K.LAKSHMAN, J

Date: 13.10.2022 AQS