Merely because one parent is not Indian citizen, will not by itself, disentitle child born in India to be issued with Indian passport: Kerala HC

Read Judgment: Minor vs. Union of India & Ors. 

Pankaj Bajpai

Ernakulam, March 17, 2022: Finding that the parents of the minor child (petitioner) had divorced by mutual consent and her custody was given to the mother, and that none of the parties could bring any legal prohibition in incorporating the name of a non-citizen as the legal guardian in the passport of a minor child, the Kerala High Court (Ernakulam Bench) has opined that the minor 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 Single Judge Bechu Kurian Thomas therefore observed 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. 

The observation came pursuant to a petition by a minor girl who has approached this Court seeking a direction for issuing a passport to her without insisting on the consent from her biological father. 

Going by the background of the case, the parents of the petitioner dissolved their marriage by mutual consent through a compromise decree from the Family Court, Ernakulam. Despite the mother of the petitioner being an American citizen, she was appointed as the legal guardian, with visitorial rights given to the father, subject to the mutual convenience of parties. After the dissolution of marriage, petitioner’s mother remarried and she intends to take the petitioner abroad to live along with her. For the said purpose, when an application for obtaining a passport was submitted, the passport issuing authority – second respondent, insisted on the consent from petitioner’s biological father and refused to accept the application, without the said consent.

According to the petitioner, 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. 

After considering the submissions, Justice Thomas noted that legally, the passport issuing authority cannot insist on consent from both parents for issuing a passport to a minor child. 

Though in earlier times, there was ambiguity and confusion regarding the procedure to be adopted when consent of both parents could not be obtained while issuing a passport to a minor, by virtue of several precedents, which were subsequently incorporated as guidelines in the Passport Manual, it has been provided that, 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 child, without insisting upon the consent of both parents, observed the Single Judge.

Therefore, Justice Thomas said 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 a minor, provided Annexure-C is submitted.  

“In the instant case, since the biological father himself has no objection in issuing a passport to the petitioner, the option to submit Annexure-C, – when the consent of one of the parents is not obtained, or Annexure-D, – when the consent of both parents is obtained, is available to the petitioner. 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”, added the Single Judge.

The High Court found that petitioner having acquired Indian citizenship by birth as per section 3 of the Hindu Marriage Act ,1955 cannot be regarded as a stateless child by reason of her mother being an American citizen, as law abhors such statelessness of children.

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, added the Court.

The High Court therefore directed the Regional Passport Officer to process the application filed by the petitioner as expeditiously as possible.