Karnataka HC Allows Consideration Of Single Mother's Application For Child's Passport Without Husband's Consent

A single judge bench of Justice M Nagaprasanna said, "The Rules are framed by the Central Government in terms of Section 24 of the (Passport) Act. Therefore, they are part of the statute and are statutory. The Passport Manual are guidelines to issue a passport are a solution to answer circumstances that would emerge, but, cannot run counter to the statute, as they are not statutes."

It made the observation while directing the regional passport authority to consider the application made by a woman for re-issuance of a passport to her minor son without insisting on a no objection certificate from her estranged husband.

The petitioner, a woman, had approached the court seeking directions to the passport officer for renewal or reissue of the passport for her minor son, so that they could travel to Australia to celebrate Christmas.

Since the petitioner had separated from her husband, she had not submitted the specimen signature of her husband for re-issuance of the passport in favour of her son. Later she was informed that the minor son's passport would not be reissued as the minor son's father's consent was mandatory for renewal/re-issuance of passport.

Even in court, the respondents opposed the plea saying that "In pending divorce cases, the signature of the other parent is mandatory as the other parent would become entitled to register proceedings against the 2nd respondent for having issued the passport without the consent of the other parent."

Findings

The bench noted that Section 24 of the Passports Act, 1967, empowers the Central Government to make Rules for carrying out the purposes of the Act. In terms of the said power, the Passports Rules, 1980 have been made.

Then referring to Clause (11) of Case No.B of the Rules, which deals with applications filed by one parent/guardian when consent of one or both parents is not possible, the bench said:

"In the event, a single parent is the applicant, without the consent of the other, the documents required are proof of present address, proof of date of birth, attested photocopy of passport of both or either parent and a declaration affirming the particulars furnished in the application about the minor".

However, the Court noted that the Chapter-9 of the Passport Manual, 2020, mandates the permission of the court before whom the cases either for divorce or custody. are pending. The bench said: "This (Chapter 9 provision) runs counter to what is permitted in the Schedules to the Rules."

Noting that the petitioner has not suppressed any fact about the ongoing litigation with her estranged husband and that the application made by the woman was rejected relying on Chapter-9 of the manual, the court said:

"The reliance placed on Chapter-9 of the Manual, runs counter to the Rules. If the Manual is in the nature of guidelines or certain administrative instructions for achieving the purposes of the Act, they cannot run counter to the Act or the Rules, schedule appended to the Rules."

Further the bench opined: "This Court is aware of the fact that manifold circumstances arise before the Passport Authorities, when they are faced with the problem of granting passport. The Manual for smooth functioning is also an accepted norm but it cannot run counter to the Rules."

Then it suggested: "It is necessary for the Central Government to bring in such amendment to the Rules, if it wants the situation emerged in the Manual to be tackled with, failing which, rejecting passports relying on the Manual particularly, in the case of passport of minors, would be rendered unsustainable as they would suffer from want of tenability."

It added that since the Rules themselves envisage a situation of the kind that has emerged in the case at hand, the reliance being placed on the Manual which runs counter to the Rules sans countenance.

The Court observed that the pendency of the custody petition before the Family Court is not an impediment to consider the application of the petitioner.

Accordingly it ordered: "The 2nd respondent will have to consider the application of the petitioner in terms of the Rules and seek any document or clarification from the parent in terms of the Rules and not in terms of the Passport Manual."

Case Title: S. Nancy Nithya v. The Government of India & others

Case No: WRIT PETITION No.22378 OF 2022

Citation: 2022 LiveLaw (Kar) 521

Date of Order: 15-12-2022

Appearance: Raghavendra Prasad M S, Advocate for petitioner.

Aditya Singh, CGC for respondents.