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Kerala High Court
Juvairiya vs The Regional Passport Officer on 17 November, 2013
The petitioner is a divorcee. The marriage between her and Sri.Fazil Koorikkadan, S/o.Sulaiman, was solemnised on 13.7.2008. In that marriage, two children, Master Zayan Koorikkadan and Master Faizan Koorikkadan were born. A divorce by pronouncement of Talaq was effected on 14.5.2013 and an agreement regarding custody of children was entered into between the petitioner and Sri.Faisal. As per the said agreement, custody of the children was given to the petitioner and the father was given only visitorial rights and permission to have the company of the elder child during the summer vacation.
2. With a view to undertake a pilgrimage to Mecca along with her children, the petitioner, who already holds a passport bearing No.L4216238 issued by the Regional Passport Officer, Malappuram on 14.10.2013, submitted separate applications for passports for her minor children. On the date on which an appointment was given to the eldest child, i.e, 16.11.2013, the petitioner produced along with other documents the original of Ext.P3 affidavit dated 12.11.2013 sworn to by her and attested by the Judicial First Class Magistrate-I, Parappanangadi. A similar affidavit was produced on 19.11.2013 on the date on which appointment was given to the youger son. In both the affidavits, the petitioner had affirmed that she is the holder of Indian passport bearing No.L4216238 issued on 14.10.2013 at Malappuram, that consent of Mr.Fazil Koorikkadan, who is the father of the child, has not been obtained for the reason that his whereabouts are not known, that they are divorced, that she is taking care of the minor children and they are in her exclusive custody. She had also affirmed that in the event of a court case arising due to the issue of a passport to the minor children she would be solely responsible for defending the case and not the Passport Issuing Authority. These affidavits were not acceptable to the Passport Issuing Authority, who sent Ext.P4 letter dated 2.1.2014 to the petitioner informing her that she should either obtain the consent of the father of the children to apply for and obtain passports for the children or obtain a declaratory order from the court granting her custody of the children and permitting her to apply for passports for them without the consent of the father. She was also informed that on production of either of the aforesaid documents, the passport applications will be processed for issue of the passports. Ext.P4 letter is under challenge in this writ petition wherein the petitioner prays for the following reliefs:-
(i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P4 order issued by the respondent, after calling for the records leading to issuance of Exhibit P4.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to process the passport applications applied as per ExhibitsP2 & P2(a) applications and issue the passport forthwith on the basis of Exhibits P3 and P3
(a) affidavits.
3. The principal contention raised in the instant writ petition is that the stand taken in Ext.P4 letter runs counter to the stipulations in schedule III of the Passport Rules, 1980. It is contended that in section III of schedule III of the Passport Rules, 1980 it is stipulated that if the applicant parent is not in a position to get the consent of the other parent "For Whatever Reason", the parent applying for the passport of the minor may sign the form and submit a sworn affidavit as per Annexure "G" stating the facts and circumstances of the case along with the application, that the affidavit should also state that in the event of a court case he/she would be responsible and not the Passport Officer and that where only one parent is applying, the physical appearance of the child may be requested to ensure the applicant parent has the actual custody of the child, that the petitioner had along with the applications for passport, produced affidavits sworn to by her in the form prescribed in Annexure "G" and therefore, the stand taken by the respondent in Ext.P4 letter cannot be sustained.
4. A statement dated 24.2.2014 has been filed by the learned Assistant Solicitor General of India appearing on behalf of the respondent. Paragraphs 3 and 4 thereof which alone are relevant are extracted below for easy reference:
"3. The visiting rights given in the divorce agreement entered by the petitioner to the parent. In this connection, an extract from the Passport Manual 2010, at page 60 is reproduced below "Special cases of minors requiring passports "Children of divorced/separated parents Application from divorced/separated parents for issue of passports to their minor children has to be processed as follows:-
A court decree granting divorce would normally award custody of the minor child/children to either parent. The PIA must ensure that the application for the minor's passport is entertained only from such parent who has been granted custody by the court. While doing so, the PIA must also satisfy himself that the period of limitation for appeal against such decree has expired before issuing a passport. PIA must also ensure that if the other PARENT HAS VISITATION OR OTHER RIGHTS ON THE CHILD AS PER THE COURT ORDER the CONSENT of the other parent is also furnished."
4. In this particular case, the decree is under personal law, but the divorce agreement is an integral part of the decree. In the agreement, visitation rights were provided. Hence the consent from parent or court order for custodianship as outlined by the Manual was insisted. The above requirement is incorporated in the Passport Rules, 1980 (amend from time to time) and based on the Passport Rules it is incorporated in the Passport Manual. (The Passport Rules are included in the Passport Act, 1967 (bare act) in the 2011 and 2013 Edition). True copy of the relevant portion of Passport Rules, 1980 is produced herewith and marked as Annexure R1(a)."
Shorn of details, the stand taken therein is that the consent of the parent who has not joined the application or an order of the court granting custody to the applicant parent is required to be produced when a parent who is divorced and has custody of minor child applies for a passport in the name of the minor.
5. I heard Sri.K.K.Mohamed Ravuf, learned counsel appearing for the petitioner and Sri.P.Parameswaran Nair, learned Assistant Solicitor General of India appearing for the respondent. I have also gone through the pleadings and the materials on record. The short question that arises for consideration in this writ petition is whether as stated by the Regional Passport Officer, Malappuram in Ext.P4 letter, when a divorced wife applies for a passport in the name of her minor child, the consent of the father of the child to apply for and obtain a passport for the child should be produced or in the absence of such consent, a declaratory order from the court granting her custody of the child with permission to apply for a passport should be produced. Rule 5(1) of the Passport Rules, 1980 (hereinafter referred to as "the Rules" for short) stipulates that an application for the issue of a passport or a travel document or for the renewal thereof or for any miscellaneous service shall be made in the appropriate form set out therefor in Part I of Schedule III and in accordance with the procedure and instructions set out in such form. Section III of the Passport Information Booklet which forms part of schedule III of the rules contains the guidelines for filling up the application. In column 16 thereof which applies in the case of a minor, it is stipulated as follows:-
Column 16-In this column, while applying for the first time for the minor children who are less than 18 years of age, the details of valid passports held by BOTH OR EITHER parents should be furnished in the relevant column. In such cases, passport to their minor child will be issued without any police verification. Further, in the cases where the parents do not hold valid passports, applications for such minors can be made on the basis of three documents of parents details of which are given in para C(B) of section IV of the Passport Information Booklet along with Standard Affidavit Annexure 1. In all such cases, passport to their minor child will be issued on post-police verification basis. A declaration on plain paper as given at Annexure H is needed to be filled up in each case. In case the minor child who is between 15 and 18 years of age wishes to obtain a full validity passport for 10 years, the same can be issued only on submission of Standard Affidavit as in Annexure "I" and any three of the 14 documents as mentioned in para C(B) of section IV of Passport Information Booklet by the parents and on payment of fee equivalent to the normal passport fee i.e. Rs.1000 for a 36 pages passport, as applicable for an adult. Otherwise the validity of the passport is restricted to five years or attaining the age of 18, whichever is earlier. In case of single parent and children born out of wedlock or in case of parents who are judicially separated, a sworn affidavit before a Magistrate, stating the facts of the case along with documentary proof to be submitted as per Annexure "C". In the NORMAL COURSE the signature/consent of both parents is required for issue of a passport to the minor (Annexure "H").
However, if in case the applicant parent is not in a position to get the consent of the other parent, FOR WHATEVER REASON, the parent applying for the passport of the minor may sign the form and submit a sworn affidavit as per Annexure "G" stating the facts and circumstances of the case along with the application. The affidavit should also state that in case of a court case he/she would be responsible and not the passport office. In such cases, where only one parent in applying, the physical appearance of the child may be requested to ensure the applicant parent has the actual custody of the child. (emphasis supplied)
6. Section IV of the Passport Information Booklet deals with the documents to be attached with the application. Under the heading (A) (3) it is stipulated as follows:-
"(3) When applying for a minor's passport attach:
(a) A declaration from the parents/single parent/applicant parent/legal guardians, as the case may be, affirming the particulars furnished in the application about the minor child as per Annexure "H" (for all minor applicants). Annexure "C" (Single parents who are separated but not formally divorced/Single parent of the child born out of wedlock). Annexure "G" (when passport is being applied for by single parent or legal guardian), Annexure 'I" (when a minor between 15-18 years of age applies for a full validity 10 year passport OR in case either parents who do not hold valid Indian passport while applying passport for their minor child), as the case may be. Single Parents applying for the passport for their child should fill up Annexure "C" and or Annexure "G", as the case may be.
(b)Attested photocopy of passport, if any, of both parents, if applicable.
(c) Original passports of parents should be presented for verification of particulars.
(d) If one parent is resident abroad, a sworn affidavit by the parent resident abroad attested by the Indian Mission along with affidavit from parent residing in india as well be submitted."
7. It is evident from the guidelines quoted above, that in the normal course, the signature/consent of both parents is required for issuance of a passport to a minor. It is however stipulated that if in case the applicant parent is not in a position to get the consent of the other parent "for whatever reason" the parent applying for a passport for the minor child may sign the form and submit a sworn affidavit as per Annexure "G" stating the facts and circumstances of the case along with the application. It is also stipulated that the affidavit should also state that in the event of a court case, he/she would be responsible and not the Passport Officer. The guidelines also stipulate that in such cases where only one parent is applying, physical appearance of the minor child may be requested to ensure the applicant parent has actual custody of the minor child.
8. It is not in dispute that separate affidavits in the form set out in Annexure "G" were submitted by the petitioner along with the applications for passports in the names of her minor children. The Regional Passport Officer however took the stand that notwithstanding the production of such affidavits, the petitioner should obtain either the written consent of the father of the children (her divorced husband) or produce a declaratory order from the court granting her custody. During the course of arguments today, the learned Assistant Solicitor General of India contended relying on Annexure R1(a) produced along with the statement filed by him, which is none other than an extract of Table 2 forming part of schedule III of the rules, that in the case of a minor when a fresh passport is applied for, if the parents of the minor are divorced, apart from proof of present address, the parent who is in custody of the child should produce proof of date of birth of the minor child, certified copy of the court order giving custody of the child to the applicant parent and also an attested copy of the passport of both or either of the parents. The learned Assistant Solicitor General of India contended that in the instant case, neither a certified copy of the court order granting custody of children to the petitioner nor the consent of the father of the children was produced and that was the reason why Ext.P4 letter was sent to the petitioner calling upon her to produce either of the two documents.
9. The relevant portion of Table 2 relating to minor applicants and forming part of schedule III of the rules is extracted below for easy reference:-
(I) Fresh Passport Document No.- Normal Application Document No.- Tatkaal
Application
8 Parents are divorced (i) 1 (of the parent who has the custody Cannot apply under Tatkaal
of the child), 2, 25, 27 (if any) Scheme
(ii) 51 (signed by both parents - if other
parent has visiting rights) or 50 (one
parent not given consent)
11 Applied by one parent/guardian when 1 (of parent), 2, 27 (if any-with spouse (i) 1 (of parent), 2, 27 (if consent of one or both parents not name endorsed), 50 any-with spouse endorsed), possible 50, 52
(ii) 49 or 54
10. A detailed description of the documents referred to in Table 2 is available in Table 3. Table 3 in schedule III of the rules gives a complete list of the documents which are required to be produced by different categories of persons along with the application for passport. Each document is also assigned document numbers. Document No.1 in Table 3 relates to proof of present address. Document No.2 relates to proof of date of birth. The Table also sets out the various kinds of documents which can be produced to prove the present address and to prove the date of birth. Document No.25 is certified copy of the court order granting custody of the child in favour of the applicant parent. Document No.27 is attested photocopy of passport of both or either parents. Document No.50 is a declaration affirming the particulars furnished in the application about the minor in the form prescribed in Annexure "G" (If one parent has not given consent). Document No.51 is a declaration affirming the particulars furnished in the application about the minor in the form prescribed in Annexure "H". In case No.8 in Table 3 it is stipulated that if the parents of the minor are divorced, the applicant parent who has custody of the minor child will have to produce along with proof of his/her address, proof of date of birth of the minor child, a certified copy of the court order granting custody of the child to the applicant parent as also an attested copy of his/her passport. It is also stipulated that the applicant parent should produce a declaration affirming the particulars furnished in the application about the minor as per Annexure "H" or a declaration affirming the particulars furnished in the application about the minor as per Annexure "G", if the other parent has not given consent. In case No.11 in Table 3 which deals with application by one parent or guardian when consent of one or both parents is not possible, the documents required to be produced are proof of present address of the applicant parent, proof of date of birth of the minor child, attested photocopy of the parents' passport if any and an affidavit in the form set out in Annexure "G". The case on hand is covered by case No.11 in Table 3. The respondent has no case that the petitioner has not produced all the documents which are required to be produced in a case covered by case No.11 in Table 3. The stand taken by the Regional Passport Officer is that in the instant case as the father has visiting rights his consent is required or in the alternative a copy of the court order appointing the petitioner as the guardian of the minor children with permission to apply for a passport is required to be filed.
11. In my considered opinion, the stand taken by the Regional Passport Officer in Ext.P4 is plainly untenable and militates against the stipulations in schedule III of the rules. As stated earlier, in section III of schedule III of the rules it is stipulated that where the applicant parent is not in a position to get the 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 "G". Even in case No.8 in table 2 it is not stipulated that the consent of the other parent should be obtained. As a matter of fact even in case No.8 in table 2 all that is stipulated is that if the other parent has visiting rights, a declaration in Annexure "H" sighed by both parents should be filed or if one of the parents has not given consent, a declaration in Annexure "G" should be filed. It is not stipulated that a certified copy of the order granting custody of the child to the applicant's parent with permission to apply for a passport should be produced. Even in case No.8 all that is stipulated is that such an order "if any" is to be produced. The words "if any" occurring in table 2 conclusively establishes the said fact. That apart, in case No.11 in table 2 which applies on all fours to the case on hand, all that is stipulated is that if one of the parents applies for a passport for his minor child, in the absence of consent of the other parent, only an affidavit in the form prescribed in Annexure "G" is required to be produced along with the other documents mentioned therein. In the instant case, such an affidavit was also filed and that affidavit has not been found to be defective. None of the other documents produced by the petitioner have been found to be defective. On the other hand, notwithstanding the fact that the petitioner has complied with the requirement of the rules, the Regional Passport Officer declined to act on the ground that the application is incomplete on account of the reasons stated in Ext.P4. As stated in section III of schedule III, if the applicant parent is not in a position to get the consent of the other parent whatever be the reason for such inability, all that is required to be produced along with the application, apart from other documents, is an affidavit in Annexure "G". It is not necessary for such an applicant to produce the consent of the other parent or an order by the court granting custody of the child to him/her. If such an order is there it has to be produced but it is not stipulated that in cases where an order granting custody of the child to the applicant parent has not been passed by a competent court, the parent having custody cannot apply for a passport for the minor child. All that the law requires in such a case is the production of a sworn affidavit in the form prescribed in Annexure "G" as also other documents set out in table 2 in respect of case No.11. I accordingly hold that the stand taken by the respondent in Ext.P4 letter runs counter to the rules and the guidelines set out therein and that it is liable to be set aside.
For the reasons stated above, I allow the writ petition, quash Ext.P4 and direct the Regional Passport Officer, Malappuram to issue a passport to the petitioner's minor children expeditiously and in any event within an outer limit of one month from the date on which the petitioner produces a certified copy of this judgment before him. The parties shall bear their respective costs.
P.N.RAVINDRAN, (JUDGE) ahg/vps
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