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Judgment
N.V.Shravan Kumar, J
Aggrieved by the action of the respondent No.2, Regional Passport Officer, in refusing to process the Passport Application No.HY1066442243124 dated 10.04.2024 under Service Type Fresh and Type of Application Normal for Tejaswini Vishwanath, who is a minor petitioner represented by her biological father Sri Shailender Vishwanath, the present writ petition is filed.
Facts in brief as stated in the present writ petition are as under:
The father of the minor petitioner married one Vanapally Varalaxmi on 27.03.2008 and out of their wedlock they were blessed with a baby girl, who is minor petitioner (hereinafter referred to as ‘the petitioner’), on 08.12.2009 and now she is studying X Class at Olivemount Global School, Attapur, Hyderabad. Thereafter, the mother of the petitioner deserted petitioner’s father company on 12.12.2012 while he was working in USA and at that time the petitioner was three years old. At present, the father of the petitioner is a permanent citizen of USA.
The father of the petitioner filed a petition in O.P. No.290 of 2023 under Section 13(1)(ib) of the Hindu Marriage Act, 1955 against his wife seeking dissolution of marriage solemnized on 27.03.2008 and also filed a petition in O.P. No.287 of 2023 under Section 7, 10 and 25 of Guardian and Wards Act seeking permanent custody of his daughter (petitioner) that were allowed vide orders dated 27.02.2024. The petitioner is interested in pursuing Pilot course and after completion of her graduation would like to join her father at USA. Hence, applied for the Passport on 10.04.2024 vide Application No.HY1066442243124. The respondent No.2 has refused to issue the Passport stating the reason that “In cases where one parent renounced the Indian Citizenship and the other parent is still an Indian citizen, the citizenship of the minor shall be of that person who has legal custody of that minor child and the eligibility of an Indian Passport will be determined on the basis of his/her citizenship.” Challenging the same, petitioner filed the present writ petition.
On behalf of the respondent No.2, Regional Passport Officer, while denying the writ averments, had filed counter affidavit, inter alia, stating that the father of the petitioner has applied for Passport of his minor daughter on 10.04.2024 vide Application No.HY1066442243124 under fresh category and subsequently received an adverse Police verification report on 18.04.2024 with the remarks stating that “the Applicant not residing in the given address hence not recommended”. Thereafter, respondent No.2 issued an objection letter dated 19.04.2024 requesting the father of the minor petitioner to furnish clarification/explanation within 30 days. However, no response was received. The father of the petitioner, at the time of submitting fresh passport application on 10.04.2024, declared that earlier he had submitted an application for Passport in the year 2022 vide File No.HY1064493135722 and the same could not be processed due to lack of documents and requested to close the file.
From the fresh passport application dated 10.04.2024, it is informed that the father of the petitioner has acquired the citizenship of USA after renunciation of Indian Citizenship. As per the guidelines mentioned in Para No.3.2(ii) under Chapter 9 of the Passport Manual-2020 that “In cases where one parent renounced the Indian Citizenship and the other parent is still an Indian Citizen, the citizenship of the minor shall be of that person who has legal custody of that minor child and the eligibility of an Indian Passport will be determined on the basis of his/her citizenship”. In accordance with the clarification issued by the Ministry of External Affairs vide Office Memorandum No.VI.401/1/1/1/2018 dated 31.07.2024 at Paragraph 4, it is stated that “when one parent renounces the Indian Citizenship U/s 8 of Citizenship Act and other parent continues to hold Indian Citizenship and the parents either get divorced and the custody of the 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 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.” Further, a reference was made to Ministry of Home Affairs, letter No.26030/24/2012-IC-I (Vol.III) dated 08.03.2018 wherein it is stated that “If only one parent has renounced Indian Citizenship and the other parent is still an Indian citizen, the citizenship of the minor shall be of that person who has legal custody of that minor child”.
In the present case, admittedly the father of the petitioner has acquired foreign citizenship after renunciation of Indian citizenship and the Family Court vide its order dated 06.05.2024 in O.P. No.287 of 2023 has granted permanent custody of the child to the father of the child (petitioner). In view of the above and considering the regulations, the minor petitioner is not entitled for issuance of Passport. Hence, the respondent No.2 has issued a letter dated 06.05.2024 to the father of the minor petitioner refusing the passport services to his minor daughter as per the applicable rules/guidelines and eventually prayed to dismiss the writ petition.
Submissions:
The learned counsel for the petitioner would submit that the petitioner was born in India and her parents were citizens of India at the time of minor petitioner’s birth. Subsequently, her parents have got separated and the permanent custody of the minor petitioner is given to her father. The father of the petitioner possesses OCI Card (Overseas Citizen of India Card) and the petitioner does not possess travel document of any country and Non-issuance of a travel document or passport to the petitioner would render her stateless and that there is no cogent reason to deny issuance of Passport to the petitioner.
A Memo has been filed to the effect that the father of the minor petitioner has obtained the OCI – Overseas Citizen of India Card. Presently, the petitioner is staying along with her grand parents and pursuing her school education and that petitioner has not renounced her Indian Citizenship on her own at any point of time and the petitioner being a minor child, the permanent custody is with her father. It is further submitted that the petitioner was born on 08.12.2009 and both the parents of the petitioner were Indian Citizens at the time of the birth of the petitioner. The marriage of the parents of the minor petitioner was dissolved under Section 13(1)(ib) of the Hindu Marriage Act, 1955 by order dated 27.02.2024 in O.P. No.290 of 2023 and the permanent custody of the minor petitioner was granted to the father of the minor petitioner on 27.02.2024 in O.P. No.289 of 2023.
The learned counsel has drawn the attention of this Court to the Section 3 of the Citizenship Act, 1955 as per which, a person born in India between January 26, 1950, and July 1, 1987, is an Indian citizen by birth, regardless of the nationality of their parents. For those born after July 1, 1987, at least one parent must be an Indian citizen at the time of birth. Further, as per Section 8(2) of the Citizenship Act, when a parent renounces Indian citizenship, their minor child also ceases to be an Indian citizen. However, Courts have interpreted this provision in the light of the child’s best interests, especially when the child has not acquired any other nationality, to prevent statelessness. In the present case, the minor petitioner born in India to Indian parents and the father of the minor petitioner, who has legal custody, has obtained U.S. citizenship. The key considerations are that whether the minor has acquired any foreign citizenship; in this regard, the learned counsel has placed reliance in the case of Chrisella Valanka Kushi Raj Naidu Vs. The Ministry of External Afftars (High Court of Bombay at Goa in W.P. No.135 of 2024 dated 28.08.2024) and submitted that the acquisition of foreign citizenship by parents does not affect Indian citizenship of minor child. For further consideration of the point that whether the minor’s Indian citizenship has been formally renounced; in this regard, the learned counsel has placed reliance in the case of Master Arya Selvakumar Priya Vs. Joint Secretary (Psp) (High Court of Karnataka at Bengaluru in W.P. No.21642 of 2022, dated 21.03.2023) and would submit that if the minor has not acquired any other nationality and has not renounced the Indian citizenship, Courts have upheld the child’s status as an Indian citizen and directed for issuance of a passport to prevent statelessness. Under these peculiar facts and circumstances, prayed this Court to consider the case of the minor petitioner and direct the respondents to process the application of the petitioner for issuance of passport.
The learned counsel representing the respondents has reiterated the counter averments and sought to dismiss the writ petition.
ANALYSIS:
Heard the learned counsel for the parties and perused the material made available on the record.
A bare perusal of the impugned refusal order dated 06.05.2024 issued by the respondent No.2, Regional Passport Officer, Hyderabad, a reference to Passport Manual – 2020, Chapter 9, Para No.3.2 has been taken wherein it is stated that “In cases where one parent has renounced the Indian Citizenship and the other parent is still an Indian Citizen, the citizenship of the minor shall be of that person who has legal custody of that minor child and the eligibility of an Indian Passport will be determined on the basis of his/her Citizenship.” It is an admitted fact that the parents of the minor petitioner were got separated vide order dated 27.02.2024 passed in O.P. No.290 of 2023 and the legal custody of the minor petitioner is given to her father.
At this stage, it is not out of place to refer an order dated 16.12.2024 passed in W.P. No.25962 of 2024 by this Court wherein, challenge was made against the action of the Passport authority in not considering the application given for issuance of the Passport to the minor petitioner therein on the ground that consent of the other parent or a Court order for the same is required and issued a letter No.OBJ/ 319450755/2024 dated 10.09.2024. This Court has considered the submissions made by the learned Deputy Solicitor General of India, appearing for the Union of India and passport authorities, relied on an Office Memorandum issued by the Ministry of External Affairs dated 31.07.2024 as well as a clarification dated 08.03.2018 to urge that passports to minor children whose parents have obtained foreign citizenship or have renounced their Indian citizenship must abide by the clauses in the Office Memorandum. After considering the aforesaid objections of Office Memorandum issued by the Ministry of External Affairs dated 31.07.2024 as well as a clarification dated 08.03.2018, this Court allowed the writ petition directing the Passport authority to consider the application made for issuing passport to the minor child. Relevant paras No.18, 19 and 20 of the said order are extracted for reference.
“18. The Office Memorandum (OM) dated 30.07.2024 which the learned Deputy Solicitor General of India relies on does not assist the case of the respondents and cannot be an impediment for granting relief to the petitioner. First, the OM relates to "reissue" of passports to minor children. Second, Clause 3(c)(iii) of the OM deals with the effect of the parent of the minor child having acquired citizenship of another country and the consequent effect of such on a child. Third, Clause 4 also deals with the citizenship of the minor where one of the parent renounces citizenship and the other parent continues to hold Indian citizenship and the custody of the child is given to one of the parents with or without divorce. None of these clauses apply to the issue at hand, namely, whether a single parent can apply for passport of a minor child.
Most importantly, the OM, even if applicable cannot replace The Passports Act, 1967 and the 198O Rules framed thereunder which specifically takes those cases into account where a single parent is entitled to apply for a passport for his/ her minor child without the consent or signature of the other parent, subject to furnishing of the prescribed Annexure.
Column 16, as stated above, highlights that if a single parent/applicant is not in a position to
obtain the consent of the other parent 'for whatever reason” the applicant-parent may complete the necessary formalities in aid of the application. The fact that the respondent No.3 has acquired American citizenship does not make the case different from the one provided in Column 16 or a departure thereunder. "For whatever reason' attracts every conceivable situation and the respondent No.3 becoming an American citizen cannot and does not render Column 16 inapplicable to the facts of the present case.”
In the instant case, counter filed on behalf of the respondents has referred the very same Office Memorandum issued by the Ministry of External Affairs dated 31.07.2024 as well as a clarification dated 08.03.2018 for not processing the Passport application of the minor petitioner herein. Hence, the same cannot be an impediment for granting relief to the minor petitioner herein.
Apart from the above, father of the minor petitioner has renounced his Indian Citizenship and obtained the Citizenship of USA and also obtained the OCI – Overseas Citizen of Indian Card. Mother of the minor petitioner deserted her husband and her whereabouts are not known and her status of citizenship is also not known. In view of the peculiar facts and circumstances of the case, the minor petitioner cannot be rendered statelessness.
Relevant to the context of the present case is Section 3 of the Citizenship Act, which provides for acquisition of citizenship by birth. Section 3 reads thus:-
“3. Citizenship by birth.- (1) Except as provided in sub-section (2), every person born in India,-
(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where-
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth-
(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.”
It is thus seen that Section 3 (1) (c) (i) stipulates that except as provided in sub-section (2), every person born in India on or after the commencement of the Citizenship (Amendment) Act, 2003, where (i) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.
On a careful perusal of the refusal order, the petitioner, as on today, has not taken citizenship of any other country and strictly applying the provisions of Section 3 (1) (c) (i) of the Indian Citizenship Act, the petitioner is a citizen of India by birth as such, the respondent authority cannot deny the passport service to her. Further, merely the father of the petitioner, who has the legal custody of the petitioner and had renounced his Indian Citizenship and acquired the foreign citizenship, cannot disentitle the petitioner for granting of Indian Passport. Article 21 includes the right to identity, nationality and dignity and denying a child citizenship or rendering them Stateless would be unconstitutional. The Hon’ble Supreme Court in the case of Maneka Gandhi Vs. Union of India (1978 AIR 597) held that the right to travel abroad and obtain a Passport is part of personal liberty under Article 21 of the Constitution of India.
In view of the statutory provisions under Section 3 of the Citizenship Act, 1955 read with Constitutional guarantees enshrined in Article 14 and 21 of the Constitution of India, the petitioner, who is a minor, cannot be rendered Stateless.
In view of the above, having regard to the peculiar facts and circumstances of the case and the submissions made by the learned counsel on either side, the impugned order dated 06.05.2024 is set aside and this writ petition is allowed. The respondents No.1 and 2 are directed to process the Passport application of the minor petitioner and complete the process of issuing the Passport within a period of three weeks from the date of receipt of a copy of this order. There shall be no order as to costs. As a sequel, miscellaneous applications, if any pending, shall stand closed.