Allowed

Alpana Harshan v. Union of India, through Secretary, Dept of Ministry of External Affairs and Ors.

Bombay HC8 Jul 2013WP/3078/2013

Case brief

AI extract

What is this about?

The petitioner challenged the Passport Authority's demand for a High Court order before changing her son's passport name following adoption. The Court held that authorities cannot question adoption validity when the mother holds custody and the deed is registered, directing the passport to be issued in the changed name.

What did the court decide?

The Passport Authorities directed to allow the application for changing the name of the son and issue the passport in the changed name.

Alpana Harshan Vs Union of India… — Constitutional and Fundamental Rights | Bombay HC (2013)

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VAT

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE URISDICTION

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WRIT PETITION NO. 3078 OF 2013

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Alpana Harsham ..Petitioner Vs. Union of India, Through Secretary, Dept. of Ministry of External Affairs and Ors. ...Respondents ***

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Mrs.C.S.Patil i/b. Mrs. Asha Shah for Petitioner Mr.Beni Chatterjee with Suresh Kumar for Respondents

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*** CORAM : V. M. KANADE, AND K.R. SHRIRAM, JJ. DATE : JULY 8, 2013

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P.C.

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Heard the learned counsel appearing on behalf of the Petitioner and the Respondents

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The grievance of the Petitioner is that though her son was

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given in adoption as per the adoption deed dated 21^st October, 2011 to her second husband and, thereafter, she had applied for changing the name of her son in the passport, that application was rejected by Respondent No.2.

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Brief facts which are relevant for the purpose of deciding this

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petition are as under:

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The Petitioner filed an application for divorce by mutual consent in Family Court, Bandra and by order dated 1.6.2004, her marriage was dissolved and the custody of the minor son Ansh was permanently given to the Petitioner. The Petitioner had got remarried with one Mr.Harshan Dharamdas on 15.12.2010. On 21.10.2011, her minor son Ansh was given in adoption by the Petitioner to her second husband Harshan Dharamdas and an adoption deed was executed and duly registered with the Registrar of Assurance. In November, 2011, the Petitioner changed the name of her son from Ansh Yogesh Shinde to Ansh Harshan Dharamdas and this change was published in the Government Gazette. The Petitioner, thereafter, made an application for Adhar Card of her son in the changed name and she received the card on 16.12.2012. The name of her son was also changed in the school record. Thereafter, the Petitioner made an application on 7.2.2013 for changing the name of her son Ansh in the passport. The Petitioner, however, was informed by the Passport Authorities that she should bring appropriate order from the Hon’ble High Court directing them to change the name of the Petitioner’s son

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It is submitted that since the adoption deed was duly

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registered and the Petitioner had complied with all the formalities, and when the adoption has taken place, there is no question of raising any issue regarding validity of adoption by the Passport Authorities.

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On the other hand, Shri Chatterjee, the learned counsel appearing on behalf of the Passport Authorities submitted that in view of section 9 of the Adoption and Maintenance Act, 1956., since the consent of the natural father was not obtained, the said adoption was not right. He has invited our attention to section 9 of the Hindu Adoption and Maintenance Act, 1956.

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The learned counsel for the Petitioner, on the other hand, submitted that whereabouts of her first husband are not known since 2004 and in view of the provisions of section 9 of the Adoption and Maintenance Act, 1956, the mother is entitled to give a child in adoption after the whereabouts of the biological father are not known.

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In our view, without going into the question regarding the validity of adoption, we can only consider the issue which falls for consideration i.e. whether the Passport Authorities would be entitled

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to raise the objection regarding validity of adoption. It is an admitted position that the Petitioner is the mother and the custody of the son was given to her by the Family Court, by a valid decree of divorce and in the consent terms, her first husband has, in terms, stated that he has no objection if the permanent custody is given to the Petitioner. That being the position, it is not open for the Passport Authorities to raise the question about the validity of adoption when the Petitioner has made an application for changing the name of her son in view of the adoption deed, since the adoption deed is validly registered and the Petitioner has complied with the provisions of the Hindu Adoption and Maintenance Act, 1956. So far as, the question of whether the Passport Authorities are entitled to raise such an objection regarding the validity of adoption is concerned, in our view, in view of the aforesaid facts, the Passport Authority would not be entitled to raise such objection.

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We, therefore, direct the Passport Authorities to allow the application filed by the Petitioner for changing the name of her son and, thereafter, issue the passport in the changed name. The first husband of the Petitioner has not filed either any objection before the Passport Authorities or has not filed any application for revocation of adoption before the Competent Authorities. In the

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event, if such an application is filed, the validity of adoption would be considered by the appropriate Court. We, therefore, clarify that at this stage, the question as to whether the adoption is valid or not, is not relevant and is kept open in the event it is raised. We, therefore,

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direct the Passport Authorities to allow the application of the Petitioner filed for changing the name of her son. Writ petition is allowed and disposed of in the aforesaid terms.

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Vaishali Tikam

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Alpana Harshan v. Union of India, through Secretary, Dept of Ministry of External Affairs and Ors.

Case brief

What is this about?

What did the court decide?

Alpana Harshan v. Union of India, through Secretary, Dept of Ministry of External Affairs and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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