Passport; Shalu Nigam Vs. Regional Passport Officer [Delhi High Court, 17-05-2016]

Passport Manual –¬†Passport Application Form – Column with regard to father’s name under the heading ‘Family Details –¬†the passport authority¬†can insist upon the name of the biological father in the Passport only if it is a requirement in law, like standing instructions, manuals etc. In the absence of any provision making it mandatory to mention the name of one’s biological father in the Passport, the respondents cannot insist upon the same. Respondents are directed to modify their software and accept petitioner No.2’s application and issue her a Passport without insisting upon mentioning her father’s name.


IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MR. JUSTICE MANMOHAN

Date of Decision : 17th May, 2016

W.P.(C) 155/2016 & CM APPLs. 684-685/2016

SHALU NIGAM & ANR ….. Petitioners Through Petitioner no.1 in person. versus THE REGIONAL PASSPORT OFFICER & ANR ….. Respondents Through Mr. Amit Bansal, Advocate and Amicus Curiae and Ms. Seema Dolo, Advocate. Mr. Rajeev Kumar, Advocate for R-1 and 2.

J U D G M E N T

MANMOHAN, J:

1. Petitioner No.1 by way of the present writ petition has sought reissuance of her daughter-petitioner No.2’s passport without insisting upon her father’s name being mentioned in the application.

2. Petitioner No.1, who appeared in person, stated that she is divorced from her husband and has raised petitioner No.2 as a single parent since her birth on 24th August, 1997. She contended that the biological father had completely abdicated his responsibilities towards petitioner No.2 since her birth.

3. Petitioner No.1 stated that the respondents insistence upon petitioner No.2 mentioning her father’s name in the application violated the rights of petitioner No.2 to determine her name and identity. She pointed out that the entire record of petitioner No.2-daugther which included her educational certificates and Aadhar Card etc. did not bear the name of her father. She submitted that if the directions sought for in the present petition are not issued, the petitioner No.2-daughter would be compelled to alter her identity that she had been using since her birth as daughter of petitioner No.1 rather than of her biological father. According to her, through the malafide, arbitrary and discriminatory decision of respondents, petitioner No.2 was being compelled to mention the name of her biological father who had refused to accept her because she is a female child. She emphasised that respondents had originally in the year 2005 and subsequently in 2011 issued a Passport without insisting upon petitioner No.2’s father.

4. Mr. Rajeev Kumar, learned counsel for respondent No.1 stated that the computerised Passport application form has a column with regard to father’s name under the heading ‘Family Details’. He stated that the said form must be filled by the petitioner No. 2. In support of his contention, he relied upon

Chapter 8, Clause IV (4.5) of the Passport Manual

which reads as under:-

“IV. Parent name not to be deleted from passport consequent to Divorce

4.5 Request for deletion of parent name from passport due to parents’ divorce should not be accepted. By virtue of the divorce decree, only the relation as wife and husband severs. The divorce decree does not result in severance of the relation between the child and the parent, unless the parent has legally disowned the child.”

5. Mr. Rajeev Kumar, learned counsel for respondent No.1 submitted that it is a well recognized principle of law that the relationship between parents and children do not get dissolved, except in cases of valid adoption. Consequently, according to him, the name of the father has to be mentioned by petitioner No. 2, before the petitioner No.2’s application for issuance of Passport can be considered. In support of his submission, he relied upon a judgment of the Madras High Court in Mrs. B.S. Deepa vs. The Regional Passport Officer, Writ Petition No.29105/2014.

6. Keeping in view the important question of law that was involved in the present proceedings, this Court vide order dated 22nd January, 2016 had appointed Mr. Amit Bansal, Advocate, as the learned Amicus Curiae.

7. Mr. Amit Bansal, learned Amicus Curiae, pointed out that in Kavneet Kaur vs. Regional Passport Office, W.P.(c) 3582/2014 decided on 31st July, 2014 a Coordinate Bench of this Court had set aside the order of Ministry of External Affairs, by which the petitioner’s request for including the name of her step father as her father in the Passport had been denied. He stated that the Court allowed the said writ petition principally on the ground that the said request was not in violation of any provision of the Passport Manual and further on account of the fact that all relevant documents mentioned the name of her step father and any variance in the Passport would create confusion.

8. Mr. Amit Bansal submitted that in Ms. Teesta Chattoraj vs. Union of India, LPA 357/2012 decided on 11th May, 2012, a Division Bench of this Court had held that no rights of a biological father can be recognized by any Court of law who had failed to discharge any responsibility towards his child.

9. Learned Amicus Curiae pointed out that in R. Gayathri vs. Regional Passport Officer, W.P.(c) 14182/2013 the High Court of Madras on 16th May, 2013 allowed the petitioner to mention the name of her step father in her Passport instead of the name of her biological father on the grounds of fair play, equity and prudence as the petitioner had been brought up by her step father only and her school records too reflected the name of her step father as her father. 10. Mr. Bansal laid emphasis on the judgment of the Supreme Court in

Githa Hariharan vs. RBI, (1999) 2 SCC 228

wherein it had been held that the mother can act as natural guardian of child, inter alia, in the event the father is indifferent towards the child or if the child is put under custody of mother by mutual understanding between the parents. In the said case, the Supreme Court further directed the organizations like RBI to formulate a methodology to meet such situations where the child is being brought up by the mother only.

11. This Court is of the opinion that the respondents can insist upon the name of the biological father in the Passport only if it is a requirement in law, like standing instructions, manuals etc. In the absence of any provision making it mandatory to mention the name of one’s biological father in the Passport, the respondents cannot insist upon the same.

12. In the present case, there is no legal requirement for insisting upon the father’s name. Respondents’ reliance on Clause 4.5 of Chapter 8 of Passport Manual 2010 is misplaced as the said Chapter deals with “change in entries in passport.” It does not pertain to entries to be made in the first instance. Consequently, Clause 4.5 of Chapter 8 is not applicable to the present case.

13. In fact, a Coordinate Bench of this Court in Ishmaan Vs. Regional Passport Office, W.P.(C) 5100/2010 decided on 21st February, 2011 directed issuance of a passport to an applicant without mentioning her father’s name on the ground that the instructions issued by the respondent itself permitted mentioning of only mother’s name in the passport. The relevant portion of the said order is reproduced hereinbelow:-

“4. The Respondents have themselves enclosed another set of instructions in a reference letter (Annexure R-2) issued on 21st April 1999. Clause 3.2(a) thereof reads as under:-

“3.2 Child born out of wedlock or child having single parent (Reference letter No. V.I/402/2/1/97 dated 21.4.1999).

a) Cases where: (i) the mother who is an Indian citizen, claims that the biological father had no contact with the mother or the child after the child’s birth; or where (ii) the child’s father is either unknown (for example a child born after a rape etc.) or (iii) has terminated the relationship with the mother after conception. In these cases, the PIA should obtain an affidavit from the mother to that effect sworn before a magistrate (Appendix 23). In these cases, the name of the father should be left blank and should not be entered in the passport without his written consent. As admission by a woman of the birth of a child out of wedlock invites social stigma, it may be presumed that rarely would she utter a lie in this regard. However, to safeguard against cases of abduction/kidnapping, the PIA should insist on the affidavit of the mother being supported by a birth certificate from a hospital or the Registrar of Births and Deaths or a municipality.”

5. It is plain that as far as the present case is concerned, with the decree of mutual divorce having been passed by the competent civil court in 2007 itself, the case of the Petitioner would be covered under Clause 3.2(a) of the above instructions dated 21st April 1999.

6. The Petitioner’s mother should now produce before the Regional Passport Officer (‘RPO’) an affidavit sworn by her before the Magistrate in terms of Clause 3.2(a) within a period of two weeks. The said affidavit will also incorporate the necessary assertion that the Petitioner’s mother will inform the RPO in the event she proposes to remarry. If such an affidavit is furnished, then the RPO will ensure that the name of the father in the passport of the Petitioner is left blank. The necessary correction in the passport be made within a further period of two weeks after the said affidavit is furnished.”

14. The present respondents on 20th February, 2015 in W.P.(C) 845/2015, Priyanshi Chandra Vs. Regional Passport Office had, on instructions, stated before a Coordinate Bench of this Court that the request of the applicant, to issue her a fresh passport, without mentioning her father’s name would be granted if she produces an affidavit in terms of Clause 3.2(a) of the Instructions contained in letter dated 21st April, 1999.

15. In the opinion of this Court, the judgment of Madras High Court in Mrs. B.S. Deepa (supra) offers no assistance to the respondents. Firstly, the issue involved in the aforesaid Madras High Court judgment was the validity of the adoption deed on the basis of which the petitioner had sought a direction to respondents to mention the name of her adoptive father as father’s name in the passport. In the present case, the petitioner no. 2 does not want to mention her father’s name at all in her passport. Secondly, the Madras High Court keeping in view the evolving societal norms relating to divorce, remarriage, single parents etc. directed the respondents to mention the name of the step father of the applicant on her passport instead of her biological father’s name. Thirdly, Madras High Court after detailed discussion on the requirement and insistence upon by the respondents on mentioning father’s name in a person’s passport had directed the Ministry of External Affairs to incorporate suitable provision in the passport manual making it optional for the parties to indicate the names of one or more biological parent in the said form. Consequently, the respondents were in essence directed by the Madras High Court to reconsider their requirement of making it mandatory for the applicants to mention the name of their biological father in their application form for issuance of passports.

16. In fact, this Court in