Passport Cannot Be Denied To Child On Sole Ground That One Parent Is Non-Indian Citizen : Kerala High Court

The Kerala High Court recently ruled that even if one of the parents of a minor child refused to give consent, the passport issuing authority is entitled to issue a passport to the minor, provided the requisite form is submitted.

While allowing the petition of a minor girl, Justice Bechu Kurian Thomas also observed that there is no legal prohibition in incorporating a non-citizen as the legal guardian in the passport of a minor child.

"Since the petitioner was born in India and her domicile of origin is India and when her biological father continues to be an Indian citizen, the objection raised by the respondents in issuing an Indian Passport, based purely on her mother being an American citizen is, to say the least, odious and legally unsustainable", the Court observed.

The Judge further laid down that one parent being a citizen of another country will not by itself disentitle a child born in India and whose other parent is an Indian citizen to be issued with an Indian passport.

"...the petitioner, though a minor and a child, is still "someone, even today". Petitioner's right to travel, her right to enjoy her nationality and her right to enjoy her citizenship cannot be ignored."

The petitioner girl's parents had dissolved their marriage by mutual consent and the mother was appointed a legal guardian despite being an American citizen with visitorial rights to the father, subject to the mutual convenience of parties. 

After the dissolution of marriage, the mother remarried and intends to take the petitioner abroad to live along with her. But when an application for a passport was submitted, the passport issuing authority insisted on the consent from the petitioner's biological father and refused to accept the application without it.

The minor girl thereby approached the Court seeking a direction to issue her a passport without insisting on consent from her biological father. She also sought directions to issue the passport to her, including details of her stepfather.

Advocate Dr. Abhilash O.U appearing for the petitioner argued that her parents had been living apart since 2011, and in such circumstances, compelling the petitioner to produce the consent of the biological father is not legally required.

It was also asserted that the petitioner is an Indian citizen by birth and that her mother, though a citizen of the United States, has been registered as an Overseas Citizen of India.

ASGI S. Manu assisted by Central Government Counsel Jaishankar V. Nair appearing for the respondents argued that as per the Passport Manual, 2020, if visitation rights have been granted as per court orders, consent of the other parent is required to process the application for issuance of a passport to a minor. 

Further, it was contended that if one of the parents willfully refuse to give consent or inordinately delays grant of consent, the passport can be issued to the child, after receipt of an affidavit (Annexure-C) obtained from the parent having custody of the child. 

They further pleaded that as per the Passport Manual, when one parent has renounced Indian citizenship and the other parent is still an Indian citizen, the citizenship of the minor shall be of that person who has legal custody of that child and the eligibility of an Indian passport will be determined on the basis of the guardian's citizenship.

The father appearing through Advocates Shahul Hameed, K.M. Varghese and T.A Niyas however submitted that he has no objection to issuing the passport to the petitioner without insisting on his consent.

The Court initiated the judgment quoting Stacia Tauscher, an Irish artist:

"We worry about what a child will become tomorrow, yet we forget that he is someone today."

The Judge then expressed appreciation for the father's willingness to let the mother take their child abroad with her, considering the child's welfare to have a better education and the need of an adolescent girl to have maternal care.

"The aforementioned willingness expressed by the father of the petitioner is indeed creditworthy, indicative of the parent acting in the interests of the welfare of the child and worthy of emulation by other similar parents." 

The Court dealt with three issues in the case: 

(i) Whether the consent of both parents are required to issue a passport to a minor child?

It was noted that the father had no objection to his child being issued an Indian passport.

More importantly, the authority could not legally insist on consent from both parents either. As per the Passport Manual, if an affidavit is filed in the form of Annexure-C of Schedule III of the Passport Rules, 1980, the passport issuing authority can issue a passport to a minor, without insisting upon the consent of both parents.

Therefore, it was held that even if one of the parents of a minor child refused to give consent, the passport issuing authority is entitled to issue a passport to the minor, provided Annexure-C is submitted.

"Thus, if the petitioner submits the relevant form as per the Passport Rules, 1980, the respondents are bound to process the application for issuance of a passport to the petitioner."

(ii) Whether the minor child is disentitled to get an Indian passport if one of the parents is a citizen of another country?

The petitioner's mother was always an American citizen, hence the question of termination or renouncement of citizenship of one parent does not arise. So it was ruled that the petitioner having acquired Indian citizenship by birth as per Section 3 of Citizenship Act, 1955 cannot be regarded as a stateless child by reason of her mother being an American citizen.

"Law abhors such statelessness of children. The comity of nations ensures that every person must have a nationality so that all rights accrue to that individual as a national of that particular country. Though nationality and citizenship are not synonymous terms, the concept of nationality cannot be ignored while considering the citizenship of a minor child, especially when the statute confers citizenship by birth."

Since the petitioner was born in India and her domicile of origin is India and when her biological father continues to be an Indian citizen, the objection raised by the respondents in issuing an Indian Passport, based purely on her mother being an American citizen was held to be odious and legally unsustainable.

Therefore, the Court took the view that merely because one parent acquired the citizenship of another country or if one parent is not a citizen of India, will not by itself, disentitle a child born in India and whose other parent is an Indian citizen to be issued with an Indian passport.

As such, it was observed that the petitioner is entitled to be issued with an Indian passport.

(iii) Whether the passport can be issued mentioning only the name of the legal guardian? 

None of the parties could bring to the notice of the Court any legal prohibition in incorporating the name of a non-citizen as the legal guardian in the passport of a minor child. Hence, the Court held that the petitioner's passport can be issued with the name of her mother as legal guardian.

As such, it was held that the petitioner is entitled to be issued with an Indian passport with the name of her mother endorsed not only as a mother but even as the legal guardian in the passport to be issued.

The passport issuing authority was thereby directed to process the petitioner's application within three weeks. 

Case Title: Chaitanya S. Nair (minor) v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 127

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