Passport Authorities Cannot Rigidly Insist on Paternal Consent When Mother Holds Legal Custody Under Divorce Decree

In brief

The question

1. Whether, in the facts and circumstances of the case, the respondent authorities were justified in insisting upon the consent of the father for issuance of a passport to the minor child

The court held

The Court answered the issues in the negative, holding that the refusal was arbitrary, unreasonable, and violative of Articles 14 and 21

It also directed

The Court allowed the writ petition and directed the Respondent authorities to issue the passport to the minor son, Akshat Chaturvedi, without insisting on the father's consent, provided other legal formalities are met

The exercise is to be completed within four weeks

01Facts

The Petitioner, the biological mother of a minor son, sought a writ of mandamus directing the Respondent authorities to issue/renew her son’s passport without insisting on the father’s consent

¶ 1

The Petitioner’s marriage was dissolved by a decree of divorce dated 23.06.2022 under Section 13-B of the Hindu Marriage Act, which granted her legal custody and recorded the father’s "no objection" to the same

¶ 4, 8

The child previously held a passport valid until 2022

¶ 5

However, the Passport Officer rejected the renewal application solely due to the non-submission of the father’s consent, despite the Petitioner’s declaration under Annexure ‘C’ that the father’s whereabouts were unknown

¶ 5-6

02Issues

i.1. Whether, in the facts and circumstances of the case, the respondent authorities were justified in insisting upon the consent of the father for issuance of a passport to the minor child

¶ 8

ii.2. Whether the refusal to process a minor's passport application due to lack of parental consent, despite undisputed legal custody, violates Articles 14 and 21 of the Constitution of India

¶ 4, 18

03Law Applied

The Court primarily applied Section 5 of the Passports Act, 1967, regarding applications by guardians, and Section 6, which exhaustively lists the grounds for refusal of a passport

¶ 9, 18

It relied on the Passport Rules, 1980 (Schedule III) and the Passport Manual, specifically Annexure ‘C’, which allows for a declaration by a single parent in cases where the other parent's consent cannot be obtained

¶ 9, 14-15

The Court followed the precedent of Maneka Gandhi v. Union of India (1978), establishing that the right to travel abroad is a facet of personal liberty under Article 21

¶ 6, 12

and cited several High Court decisions (Bombay, Kerala, Allahabad, Gujarat) holding that the welfare of the minor is paramount and procedural consent cannot override natural justice

¶ 11-15

Provisions in the judgment · 2 · Linked ones open on LawLens

Passports Act, 1967 Section 5 Section 6

04Reasoning

The Court reasoned that the statutory scheme does not mandate an "inflexible or absolute" requirement for both parents' consent

¶ 9

It observed that the Petitioner’s status as the custodial parent was "legally crystallized" by the divorce decree

¶ 8

The Court found that the Respondent's insistence on father's consent was a "mechanical and formulaic" interpretation of procedural requirements that failed to appreciate the relaxation provided under Annexure ‘C’ for genuine cases

¶ 16-17

The Court highlighted that the absence of a parent's consent is not a valid statutory ground for refusal under Section 6 of the Act

¶ 18

Furthermore, the Court emphasized that where legal custody is undisputed, requiring the consent of an absent parent becomes an "unreasonable" and "impossible" condition that defeats the minor's constitutional right to travel and their overall welfare

¶ 19-20