Bombay High Court: The petitioner was a minor girl of 16 years, who sought the quashing of decision of the High Commission of India, Passport & Consular Wing, United Kingdom (‘respondent 2’), holding the minor ineligible for an Indian passport since she is a child of a foreign national single parent. M.S. Karnik* and Valmiki Menezes, JJ., held that the acquisition of a foreign nationality by the minor’s mother will not affect the citizenship status of the minor, and further held that she was entitled to be issued a passport based on her Indian citizenship.
Background
The minor was born in Goa in 2007, and both her parents were Indian citizens at the time of their marriage. In 2010, her parents divorced, and her mother received her physical custody. The minor applied for an Indian passport in 2014, which was issued, that was valid until 2019; she was also issued an Aadhaar Card. The same year, her mother applied for her own birth registration in Portugal, which was registered in the Register of Births in Portugal in 2015, and therefrom, her mother acquired Portuguese citizenship. Her mother was also registered as an Overseas Citizen of India.
Thereafter, the minor travelled to the United Kingdom (‘UK’), where her mother took up employment, and continued residing there. The minor was issued a Residence Card in 2017 by the Government of UK, as she was a family member of a (European) Union Citizen. Subsequently, she was also granted an ‘Indefinite Leave to Remain’ status in the UK Government in 2021.
The minor’s Indian passport was expiring in 2019, and therefore she applied for a renewal for the same before respondent 2. However, respondent 2 communicated that she was not eligible for an Indian passport.
Analysis and decision
The Court referred to Lourdes Jennifer Lobo v. Regional Passport Officer, 2024 SCC OnLine Bom 322, wherein the instant Court considered the relevant provisions of the Citizenship Act, 1955 and the Passports Act, 1967, along with the historical facts associated with the integration of Portuguese Goa into India.
The Court applied the provisions of the citizenship law of India to the present case and noted that the minor was born in 2007 in India, after the commencement of the Citizenship (Amendment) Act, 2003 and had not acquired the citizenship of any other country; thereby making her a citizen of India by birth. Further, the Court noted that before acquiring the citizenship of Portugal, the minor’s mother was also an Indian citizen; and that nothing on record indicated that the minor’s father does not continue to be an Indian citizen.
However, the question that confronted the wisdom of the Court was that whether the minor could be considered as not an Indian citizen anymore by virtue of being in custody of her mother who was not an Indian citizen anymore?
The Court perused Sections 8, 9 and 10 of the Citizenship Act, and found that the mother had not renounced her Indian citizenship, therefore Section 8 was not applicable. She had acquired a foreign citizenship, and therefore she ceased to be a citizen of India. The Court, therefore, distinguished in between the loss of Indian citizenship and voluntarily acquiring a foreign citizenship.
The Court relied on the following cases: State of A.P. v. Abdul Khader, 1961 SCC OnLine SC 149; Akbar Khan Alam Khan v. Union of India, 1961 SCC OnLine SC 4; State of U.P. v. Shah Mohd., (1969) 1 SCC 771; Bhagwati Prasad Dixit v. Rajeev Gandhi, (1986) 4 SCC 78; and Gangadhar Yashwant Bhandare v. Erasmo Jesus De Sequeira, (1975) 1 SCC 544.
Having considered the relevant provisions of citizenship law and the ratio and obiter in the above-mentioned pronouncements, the Court opined that the petition must succeed. The Court said that merely because the minor’s custody is with her (now) foreign citizen mother is no ground to assume that the minor is no longer a citizen of India——the Citizenship Act does not provide for such a consequence. The minor has not acquired the citizenship of another country, and therefore is a citizen of India under the terms of Section 3 of the Citizenship Act.
The Court noted the Office Memorandum1 (‘OM’) issued by the Ministry of External Affairs (PSP Division), the subject of which was: Clarification regarding surrender of Indian Passport and Renunciation of Indian Citizenship by parents (of Indian Origin) and its effect on re-issue of Passport of minor children.
The following has been reproduced from the OM:
3(c)(iii). If the parent of a minor child has voluntarily acquired citizenship of another country, they cease to be a citizen of India under provisions of Section 9 of the Citizenship Act. It is to state that Section 9 of the Act does not have any provision of termination of citizenship of minors of such persons.
4. When one parent renounces the Indian citizenship u/s 8 of the Citizenship Act and other parent continues to hold Indian citizenship and the parents either get divorced and the custody of child is given to one of the parents or without divorce the court has given legal custody of the child of one of the parents In such case (if only one parent has renounced Indian citizenship and the other parent is still an Indian citizen), the citizenship of minor shall be of that parent who has the legal custody of that minor child.
The Court noted that the OM did not help the respondents’ case as it largely provided for renunciation of citizenship by Indian parents, which was not the case in the instant petition, as the minor’s mother had acquired a foreign citizenship. Irrespective, the OM did not provide for the termination of citizenship of minors of such persons. Having concluded the matter of minors citizenship, the Court turned to the impugned order.
The Court in respect of the same considered Sections 5 and 6 of the Passports Act, wherein the provisions have been made for the refusal of issuing of a passport or travel document. However, the Court found that none of the grounds contained therein were applicable to the minor’s case.
The Court stated that the acquisition of a foreign nationality by the minor’s mother will not affect the citizenship status of the minor; the child cannot be left ‘stateless.’
Therefore, the Court set aside the order issued by respondent 2 and held that the minor was entitled to be issued a passport on the basis of her Indian citizenship.
[Chrisella Valanka Kushi Raj Naidu v. Ministry of External Affairs, 2024 SCC OnLine Bom 2865, decided on 28-08-2024]
*Judgment authored by: Justice M.S. Karnik
Advocates who appeared in this case :
For the petitioner: Abhijeet Kamat, Advocate
For the respondents: Raviraj Chodankar, Central Government Standing Counsel for the Union of India
1. No. VI.401/1/1/2018, dated 31-07-2024