Allowed

Zaynab Aaliyah Mohammed v. the Union of India

Telangana HC16 Dec 2024WP/25962/2024

Case brief

AI extract

What is this about?

The High Court held that a single parent with exclusive custody of a minor child can apply for a passport without the other parent's consent under the Passports Act and guiding rules. The writ petition was allowed, directing the Passport Office to issue the passport and setting aside the letter requiring the father's consent.

What did the court decide?

The writ petition was allowed, directing the Respondent No. 2 to consider the passport application and issue the passport to the minor child, and the impugned letter dated 10.09.2024 requiring the fat

Zaynab Aaliyah Mohammed Vs the Union of… — Pension and Retirement Benefits | Telangana HC (2024)

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[³⁴⁰⁵¹

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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MONDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE JUSTICE MOUSHUMI BHATTACHARYA

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WRIT PETITION NO: 25962 OF 2024

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Between:

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ZAYNAB AALIYAH MOHAMMED, daughter of Mohammed Abdul Khadeer, being a minor, aged about 4^years, represented by her Mother and Natural Guardian Dr. Sana Fatima, wife of Mohammed Abdul Khadeer, aged about 31 years, Occupation. Medical Practitioner, resident of H.No.8-2-316l3/N, Road No. 14, Banjara Hills, Hyderabad

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...PETITIONER

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AND

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1 THE UNION OF lNDlA, Represented by its Secretary, Ministry of Extemal Affairs, Government of lndia.

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2 THE REGIONAL PASSPORT OFFICE, represented by the Regional Passport Officer, situated at D.No. 8-2-215 to 219, Adjacent to Prashanth Theatre, Kummarguda, Secunderabad 500003.

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3 Dr. MOHAMMED ABDUL KHADEER, son of Abdul Ghaffar, aged about 37 years, Occupation. lvledical Practitioner, resident of H. No. 8-3-939, Yellareddyguda, Ameerpet, Hyderabad-500073,^presently residing at 3504 Pence CT, Annandale, Virginia 22003, USA.

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(Respondent No. 3 is not necessary party to the present Writ Petition as no relief is being sought against him)

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia^{prayingthat in the} circumstances stated in the affidavit filed therewith, the^{High Court may be} pleased to grant a Writ, Order or Direction, more particularly in the nature of Writ of Mandamus declaring the action of the Respondent No. 2^{in not considering the} application given for issuance of the Passport to the^{Minor petitioneron the} ground that consent.of the other parent or a Court order for the same is required and issuing a letter bearing ref. No. O8Ji319450755124,^{daled 1Ol09l2O24to the} Writ Petitioner, as illegal, arbitrary,^violation of^{Fundamental Rightssuch as} Article 14,19 and 21 of the Constitution^{of lndia apart fromthe law laid downby}

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: - .ts:'"

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this Hon'ble Court in its^judgment reported in L. Deepika vs, Union of lndia,2022 SCC Online TS 2481 and consequently direct the Respondents No. 1 and 2 to issue passport to the Minor Zaynab Aaliyah Mohammed, aged about 4 years, the Writ Petitioner herein bearing Passport Application Number- HYD066436736524.

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lA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondent No. 1 and,2 to consider application of Petitioner vide Application No. HYD066436736524 without reference to letter dated 1010912O24 bearing letter reference no. OBJ/319450755124 and conditions prescribed thereunder.

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Counsel for the Petitioner: SRI ZEESHAN ADNAN MAHMOOD

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Counsel forthe Respondent No.I & 2: SRI GADI PRAVEEN KUMAR, Dy. SOLICITOR GEN. OF INDIA

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The Court made the following: ORDER

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THE HON'BLE JUSTICE^{MOUSHUMI BHATTACHARYA}

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WRIT PETITION No.25952 OF 2ol24

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Counsel for the^{petitioner: Sri Zreshan Adnan Mahmood}

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Counsel for the respondent^Nos.1 and^{2 : Sri GadiPraveenKumar, learned} Deputy Solicitor General of^India.

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ORDER:

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The petitioner, a minor aged about^{4 years,is represented} by her mother arrd natural^guardian -^{Dr.Sana Fatima.The} petitioner prays for a direction on the^{respondent No.2/the} Regional Passport Officer,^{Hyderabad for issuinga passport.}

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It may be recorded that the^{respondentNo.3/private} respondent has remained^{unrepresenteddespite service of} notice. The Cause List^{however reflectsthe name of an} Advocate representing^{the respondentNo.3.}

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The case made out in the^{writ petition is that the} petitioner and her mother have^{been deserted by their father} and husband^(the respondent^{No.3). The respondent No'3 is a} citizen of the United States^{of America.The petitionerquesLions} tl-e letter dated^{1O.09.2024issued by the respondent No'2/the} Regional Passport Officer,^{Hyderabadrequiringthe consent of} the other parent or^permission from^{a Court for issuing the}

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W.P.No.25962^{of 2O24} MB,J

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passport. This document^{forms the basis of the chalienge in the} writ petition.

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Counsei submits that^{the fact of the petitioner's mother/} Dr.Sala Patima being estranged from her^husband/the respondent No.3 would be evident from^the Petition^for dissolution of^marriage hled by the petitioner^againstthe respondent No.3^{underthe provisionsof The MuslimMarriage} Act, 1939. The^{divorce proceeding was hledbeforethe City Civil} Court, Hyderabad in^{2023 and is pending as on dateThe} petitioner's mother^{prayed for a decreeof divorcedissolvingthe} marriage solemnized^{on 13. 1 l.2Ol7 betweenthe petitioner's} mother and the resPondent^No.3'

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Counsel submits that^{the respondentNo 3 deserted the} petitioner and that^{the minor is in the exclusive custody of her} mother/Dr.Sana^{Fatima.Counsel relies on The Passport Rules'} 1980 (the 198O^{Rules) and Column16 of the guidellnes for} {illing up an application^{form in particular cases including by a} single parent^{who is not in a position to get the consent of the} other parent. Counsel^{also relies on a judgmentpassedby a} Co-ordinate Bench in L.Deepika^{Vs. unionof Indiar in supportof}

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) 2222 scc Online TS 2481

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W.P.No.25952 oJ 2024 MB,J

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the argument that a single^{parent cannot be asked to follow} unreasonable reqrrirements for^{issue of passport to the minor} child which is contrary to^{The PassportsAct, 1,967 (lbe1967} Act) and the 1980 Rules.T'

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The learned Deputy Solicitor^{Generalof India, appearing} for the Union of India and the^{passport authorities, relies on an} Office Memorandum issued^{by the Ministry of External Affairs} d,ated 31.07.2024 as^{well as a clarifrcation dated O8 03'2018 to} urge that passports to^{minor children whoseparentshave} obtained foreign citizenship^{or have renounced their Indian} citizenship must abide by the^{clauses in theOffrce} Memorandum.

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I have heard learned counsel^{appearingfor the petitioner} and the learned Deputy^{SolicitorGeneraiof India for the} respondent authorities^{and consideredthe relevant provision s} ofThe Passports Act,^{1967 and The Passport Rules, 1980'}

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From the material on^{record it is evident that Dr'Sana} Fatima is a single^{parentto the extent of having exclusive} custody of the minor child.^{It is also undisputed that the} parents of the minor are^{estrangedin view of the pending} divorce proceedings^{before the City Civil Court,Hyderabad' The}

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W.P,No.25962 o.f 2024 MB,J

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only issue u'hich falls for consideration is^{whetherthe Office} Memorandum of 31.07.2024 can affect the right of^{the minor} child for being considered for issuance of a^{passport and} whether Dr.Sana Fatima (the single parent) has complied rvith the statutory requirements for processing of the^passport applications.

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Relevant S tatutorv Provisions

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Column 16 in Section III of the Guidelines for filling up of Application Forms under the 1980 Rules provides for cases where a single parent can furnish a sworn afhdavit bcfore the Ministry stating the facts of the case along with documentary proof as per Annexure C'. The relevant part of Column 16 is extracted below:

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"...[n the NORMAL COURSE the signature / consent of both parents is required for issue of a passport to the minor (Annexure "H"). However, if in case the applicant parent is not in a position to get the consent of the other parent, FOR WHATEVER REASON, the parent applying for the passport of the minor may sign the form and submit a sworn affidavit as per Annexure^"G"..."

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Section IV of the 1980 Rules further provides under (e)(3)(a) that when applyrng for a minor's passport a declaration from the single parent/ applicant pa,rent, as the case may be, will have to be furnished along with particulars about the minor

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W.P.No.25962^{of 2024} MB,J

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childasperAnnexure.H,.Annexure.C,wouldapplyforsingle parents who^{are separated but not formally divorced and} Annexure 'G'^{when the passport is being appliedfor by the} singleparentoralegalguardian'SectionIV(A)(3)(a)further be hlled uPⁱⁿ enumerates^{the documents whichshould} A "Note" to^this Annexures 'C'^{and 'G', as the case maybe'} section^{provides as follows:}

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"N.8. - Ordinarily^{the consentof both parents is required} for issue of^{a passport to a minor (below18 yearsof age)'} t]o*"r". if^{it is ab;olutely not nossible dueto anyreason''} Lhe^{parent applying for a passiort for his/her minor child} L""tJ"'u.ri".-'afrida"it^{lAnnexure"G') and based on the} will be^processed" ".i.^{pu""poa "pptication}

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ll.Clause4.8oftheGuidelinesrelatingtoissueofpassports framed under^{The Passports Act, 1967 provides as foliows:}

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'In case^{one married parenttras terminated the} ."L,i"""llo^{with the otherparent without a. formal} iirl."i, , ,L"r"trtion^{in the formal of Annexure 'C' may. be} the custodv^{or the child"} ;:""";';;r;;i.;p^i.nt t '"i"e

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Clause^{4.8 was considered by a Division Bench of this} Court^{presided over by the Hon'lole the Chief Justicein} W.A.No.239^{of 2024 by a judgmentdatedO2'O4'2O24 whicl:,} held that^{a single parent having custody of a child is entitled to} seek renewal^{of the passport-Neither ttre 1967 Act nor the} Rules contained^{therein contail any statutoryprovisionthat a}

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W.P.No.25962 o.f 2O24 MB,J

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single parent cannot maintain an application seeking renewal of the passport.

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The position under the 1967 Act as u,-ell as the 1980 Rules is hence clear. The Act does not prohibit a single parent from appiying for a passport for his/her minor chiid. The 1980 Rules specihcaliy provide for situations where a single parent with exclusive custody of the minor child can apply for a passport,without the signature or consent of the other parent. This would be applicable where the parents are separated but without a formal decree of divorce. The only conditiorL is that the parent must furnish information in the prescribed annexure as per the Rules and Guidelines.

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L4. Further, any interpretation of tbe 1967 Act or the 1980 Rules with the effect of preventing a single parent from applying for a passport for his/her minor child is patently contrary to the rights of the parent as well as the minor child including those granted under the Constitution of India. It is inconceivable in this day and age that a single parent who is no longer in touch with the other parent of the minor clr,rld "for uhateuer reason" as Column 16 states would be made to suffer a statutory embargo in applying for a passport for the minor child.

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W.P.No.25962 oj 2024 MB,J

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Case law

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The right of a single parent in applying for a passport of a minor child has been considered by several Courts including a Co-ordinate Bench of this Court in L.Deepika (supra). The facts in that case are similar to the facts in the present writ petition where the passport authorities objected to the processing of.the passport application submitted by the petitioner without the consent of the other parent. Like in the present case, a divorce application was also pending in L.Deepika. The Court considered Juuaiiga Vs. Regional Po.ssport Offtcer2^anrd Clnitanga S.lVair Vs. Union of India3 and held that the objections raised by the passport authorities were contrary to the Passport Rules, 1980 and hence they are liable to be set aside. The passport authorities were accordingly directed to consider the application submitted by the petitioner for issuance of^passport to the petitioner's minor son.

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In the present case, there is a pending divorce^proceeding between the petitioner's mother and the respondent No.3/father. The respondent No.3 has opted for citizenship^of

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2(20r4l t ALT 990

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3WP(C)No.22555 of 2O2l dated O4.O3.2022

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W.P,No'25962 of 2O24 MB,J

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the United States of^{Americaand the Court is informed that} presently there is no^{contactbetween the petitioner and the} respondent No.3.

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Although, not relevant^{to the issue at hand, there is no} criminal case^{pending againstthe petitioner's motherT'Dr'Sana} Fatima. The respondent^{No.3has also not hled for cr-rstodyor} guardianship of the minor child.^{More importantly,the} petitioner 1-ras already^{hled declarations in Annexures 'C'and 'D'} and all required documents^{with the said Annexures.Annexure} 'C', which is part of^{the writ petition inciudes a declaration} pertaining to the ongoing Court^{case as well as the fact that} there is no order^{prohibitingissuance of passportto the minor} child withor-rt the consent^{of the respondent No.3. Annexure'C'} also declares that the^{petitionerhas been deserted by the} respondent No.3 and^{that the minor child is under the exclusive} care and custody of the^{mother/Dr.Sana Fatima.}

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The Office Memorandum^{(OM)dated 30'07.?024 which} the learned Deputy Solicitor General^{of Indiarelieson 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

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l::

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W.P.No.25962 o.f 2024 MB'J

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the OM deals with the effect of the^{parentof the minor child} having acquired citize nship 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 arld the^{other parent continuesto hold} Indiar citizenship and the^{custody of the child is givento one of} the parents with or without divorce'^{None of these clauses} apply to the issue at hand,^{namely,whethera singleparent cart} apply for passport of a minor^child.

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lg. Most importantly, the^{OM, even ifapplicable cannot} replace The Passports Act,^{1967 and the 198O Rules framed} thereunder which specifrcally^{takes thosecases into account} where a single^parent is^{entitled to apply for a passport for} his/ her minor child without^{the consent or signatureof the} other parent, subject^{to furnishing of the prescribedAnnexure'}

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Column 16, as^{stated above, highlights that if a single} parent/ applicalt is not in a^{position to obtaintJle consentof} the other parent'fff. u)tnteuel-reg4d'^{the applicant-parent} may complete the necessary^{formalitiesin aid of the application'} The fact that the respondent^{No.3 has acquired American} citizenship does not make^{the case differentfrom the one}

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W.P.No.25962 of 2O24 MB,J

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provided in Column 16 or a departure thereunder. " For tuhateuer reasort' 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 C SE

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The above reasons are sufhcient for the Court to allow the writ petition and grant the relief prayed for.

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W.P.No.25962 of 2024 is accordingly allowed and disposed of by directing the respondent No.2/passport authority to consider the application made by Dr.Sana Fatima for issuing passport to the minor child. The respondent No.2/ Regional Passport Ofhcer shall process the application and issue the passport in terms of the formalities completed by the applicant. The impugned document dated 10.O9.2024 is set aside.

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Misceilaneous applications, if any, shall stand closed.

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SD/-K. AMMAJI ASSISTANT REGIS.TRAR

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//TRUE COPY// tql SECTION OFFICER

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To, 1. The Secretary, Ministry of External Affairs, Government of lndia, Union Of lndia.

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The Regional Passport Officer, Regional Passport Office, situated at D.No. 8- 2-215 to 219, Adjacent to Prashanth Theatre, Kummarguda, Secunderabad 500003.

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