Bombay High Court: The present petition was filed under Article 226 of the Constitution by petitioner-minor through her mother-the natural guardian, against Respondent 2-the Regional Passport Officer, who issued the impugned communication dated 18-11-2024 informing petitioner that her passport application dated 28-10-2024 was not processed as her father had objected to re-issue her passport.
The Division Bench of G.S. Kulkarni* and Advait M. Sethna, JJ., opined petitioner’s right to travel abroad by issuance of a passport could not be scuttled and/or taken away by denying her passport to be issued/re-issued merely because her father had marital disputes with her mother and was therefore not supporting petitioner’s application by consenting to it. The Court set aside the impugned communication dated 18-11-2024 issued by Respondent 2 and directed Respondent 2 to issue passport to petitioner under her application submitted by her mother-the natural guardian.
Background
Petitioner’s parents got married in 2006 but there was a marital dispute between them and as serious matrimonial disputes were pending between petitioner’s parents, it was submitted that it had become a matter of concern insofar as petitioner’s application for issuance/re-issuance of passport was concerned.
Petitioner was studying at Kendriya Vidyalaya, Pune and in X Standard, she secured 92% marks. On 06-09-2024, Kendriya Vidyalaya Sangathan issued a Circular that 12 Students, who have secured over and above 90% marks in X Standard examination, would be nominated from Kendriya Vidyalaya Schools for attending ‘Sakura Science High School Programme’ to be held in Japan. Petitioner was being nominated by her school to attend the programme in Japan, for which, she required a valid re-issued passport. Therefore, petitioner’s mother made an application dated 28-10-2024 to Respondent 2 for re-issuance of her passport, but by the impugned communication dated 18-11-2024, petitioner’s application was refused to be processed on the objection raised by her father.
Respondent 2 submitted that petitioner’s mother along with petitioner’s passport application submitted a declaration in Annexure-D, which required signatures to be made on the passport application by both parents and as the application was signed only by the mother and the father’s signature was missing and moreover as it was objected by the father, the impugned communication was issued by Respondent 2 calling upon the deficiency to be complied by obtaining the father’s signature.
Petitioner’s mother also submitted a declaration in Annexure-C dated 29-10-2024, which was required to be submitted by “applicant’s parents/guardian for issuance of a passport to minor when the parent had not given consent”, in which petitioner’s mother she selected the option which stated that “there is an ongoing court case for divorce/custody of the minor child and the Court has not given any order prohibiting the issue of passport without the consent of the father/mother”.
Analysis, Law, and Decision
The Court observed that the Passport Authority was bound to consider variety of facts and circumstances in respect of the applications received by it for issuance of a passport and the assessment of such applications was required to be considered on the touchstone of the requirement of the provisions of law under the Rules also deal with variety of situations. The Court noted that a specific provision had been made when a declaration was required to be made in cases where one parent of the minor had not given consent.
The Court stated that once the declaration was submitted by petitioner’s mother in Annexure C, the same was required to be acted upon, as the status of petitioner’s application had undergone a change from the original application, which was submitted in Annexure D, which required the consent of both the parents. The Court opined that the impugned communication was solely based on considering the declaration in Annexure D and not the declaration in Annexure C, which was filed by petitioner’s mother for specific reason that petitioner’s father was not granting consent/NOC.
The Court stated that petitioner’s father had not obtained any order from any Court that petitioner or petitioner’s mother ought not to pursue any application for issuance/re-issuance of petitioner’s passport. The Court also stated that except for stating that petitioner’s father refused NOC, he did not make out any legal, valid, or justifiable ground or placed any material before Respondent 2, which justified denial of the issuance of passport to petitioner.
The Court noted that on one hand, petitioner’s father was pursuing his case against petitioner’s mother to obtain a divorce, but he objected to the issuance of a NOC for his daughter’s passport.
The Court opined that petitioner’s right to travel abroad by issuance of passport could not be scuttled and/or taken away by denying her a passport to be issued/re-issued merely because her father had disputes with her mother and was therefore not supporting petitioner’s application by consenting to it.
The Court stated that petitioner’s mother submitted a declaration in Annexure-C, which was required to be considered and processed by Respondent 2.
The Court opined that the expression “person liberty” which occurred in Article 21 of the Constitution included the right to travel abroad, and no person could be deprived of that right except according to the procedure established in law and the procedure prescribed by law must be fair, just and reasonable, not fanciful, oppressive or arbitrary. The Court relied on Maneka Gandhi v. Union of India, 1978 1 SCC 248, and opined that the right to travel abroad was a facet of fundamental right guaranteed under Article 21 of the Constitution.
The Court observed that in contemporary times, traveling abroad could not be a fanciful affair but hat become an essential requirement of modern life and such need to travel which might be the requirement of a child, a student, an employee, professional, or a person from any other strata of society, had undergone a monumental change. Thus, the right to travel was required to be not only recognized but made more meaningful, which could be achieved and supported by the authorities implementing the provisions of the Passport Act, 1967 (‘Passport Act’) by effectively recognizing such contemporary needs in dealing with passport applications.
The Court stated that in the present case, petitioner-a student was being given an opportunity to undertake a study tour by visiting a foreign country and any action of the Passport Authority in denying the passport would have severe consequence not only adversely affecting the applicant, but it might cause irreparable harm to the prospects of the applicant, for any venture she/he intended to undertake. Thus, a mechanical approach in this regard by the Passport Authority could not be accepted.
The Court held that valuable constitutional right of petitioner could not be prejudiced or be taken away, and merely on the ground as contained in the impugned communication dated 18-11-2024 issued by Respondent 2. The Court stated that the ground on which petitioner’s application was not being processed was in no manner recognized by Section 6 of the Passport Act. Thus, there was no warrant in law for Respondent 2 to deny the re-issuance of passport to petitioner when the declaration in Annexure-C was submitted by petitioner’s mother.
The Court set aside the impugned communication dated 18-11-2024 issued by Respondent 2 and directed Respondent 2 to issue passport to petitioner under her application submitted by her mother-the natural guardian.
[Yushika Vivek Gedam v. Union of India, Writ Petition No. 19042 of 2024, decided on 08-01-2025]
*Judgment authored by: Justice G.S. Kulkarni
Advocates who appeared in this case :
For the Petitioner: Balasaheb G. Ligade, for the Petitioner
For the respondents: Shehnaz V. Bharucha, for the Respondents
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