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Friday, January 27, 2017

Passport rule change ~ Madras High Court directs issuance indicating step father !!

It is still considered a ‘pride of possession’ and a document distinguishing between elite few and the ordinary others  - it is the ‘Passport’ – a document issued by the Government, without which a person cannot embark on an International travel, a document certifying the identity and nationality of the holder.  The elements of identity are name, date of birth, sex, and place of birth. 

Till a couple of decades ago, In India, only rich had them or whoever possessed one was considered rich !  - the others were who felt the dire need to go abroad for work and earning !  - the procedures were considered cumbersome and was obtained after some difficulty of standing in winding queue after filling up pages and providing substantive documents.  It is widely accepted in all places in India as a mark of identity either for opening of bank accounts or for any other purpose.  Factually it is more of a document of identity and not a document of travel into another country  or of consular protection whilst abroad nor provide any privileges.  But without passport one cannot obtain the entry permit or visa enabling travel to a foreign country.

The Indian Passport application would bemuse one at first look requiring special skills to fill it up properly, though the requirements are lucidly explained. There are columns of : Name (provision for name upto 75 character long which would include the Surname;   If one has ever changed name, the previous name in full is to be indicated; Male / Female option; Date of Birth; Place and country of birth (if born before partition of India at a place which now falls within Pakistan or Bangladesh, the name of place is to be filled with Country specified as ‘undivided India’)………………….. The Name of Father, Mother and Spouse are required to entered. [ write full name of your parents with expansions of initials ….. ] In fact there is need for writing the maiden name of the mother.  Then there are the requirements regarding the place of residence with details of duration in that particular place; details of Educational qualifications et. al.  (this is no post written to help one in filling up a passport application !)

A couple of years back, in UK (especially after pressure from Gay lobby) – it was  no longer be Father / Mother but the option of  :  ‘parent 1’ and ‘parent 2’.    I had posted earlier on that and concluded asking – considering that India has all along followed British rules, whether this rule too would impact us at some point !!

Here is an interesting judgment delivered in Jan 2015 by the Honourable Thiru Justice V. Ramasubramanian at Madras High Court, on a petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus directing the Passport authorities  to issue a passport for the daughter of the petitioner " mentioning her adoptive father as her father.

In the impugned case, the petitioner was the mother of a minor girl for whom passport was sought to be issued.  The petitioner had married in Sept 1998 and had a girl child in 2001.  The marriage was short-lived and dissolved by a decree of divorce.  The petitioner is having the custody of the minor child for the past about 13 years, without any claim by her former husband. After the decree of divorce, the petitioner changed the name of her daughter  which was  also published in the Government Gazette.  After about 10 years of the decree of divorce, the petitioner married another person.  According to the petitioner, she gave her minor daughter in adoption to her new husband and the same was also evidenced by a deed of adoption registered.

With both of them in software industry and intending to travel abroad, they wanted to take their minor daughter out of India and hence applied for passport.  Later it was known that the application was pending on account of the discrepancy between the name of the biological father and the name of the father indicated in the application form. Hence, the petitioner  came  up with the writ petition, seeking the issue of a writ of mandamus to direct the respondents to issue passport to her daughter indicating the name of the adoptive father.

A circular to the effect that the name of the step father or stepmother of a child cannot be written in the passport of the children stood in the way. Going by the same it was  contended by the learned Central Government Standing Counsel that though there could be a divorce between the husband and the wife, there cannot be a severance of the relationship between the parents and a child.  There appears to have been similar instances and a stricter interpretation perhaps could deny the prayer.  It appears that even in the United States where such questions arise more frequently than they do here, there is no procedure for replacing the name of the biological father with that of the stepfather.

The Hon’ble Court observed that unfortunately, in their anxiety to provide immediate relief and succour to the separated mothers and their minor children, Courts appear to have forgotten the larger issues arising in these cases. Some of the issues that may pose difficulty of being resolved : the names of biological parents  as entered in the Hospital Records and in the Birth Register Extracts can never be changed, as they reflect true statements of fact.  Assuming, (God forbids) that there is yet another marriage, as it happens without much ado in Western Societies, is it possible to change the name of the parents every time there is a divorce followed by a fresh marriage.
When society evolves and relationships constantly get redefined, legal issues become more and more complex. Therefore, before jumping into a solution, Courts have a duty to think of the problems that the solutions themselves may throw up. Unfortunately, law on this issue has not evolved in India and hence, we have to look up only to International Conventions and the manner in which the Courts in other countries deal with such situations.  The Hon’ble Justice mentions of a resolution of UN General Assembly popularly known as "Convention on the Rights of the Child", which  indicates several parameters. Under Article 7 of the said Convention, a child should be registered immediately after birth and it shall have the right from birth to a name. It also has a right to know and be cared by his or her parents. Article 10.2 of the Convention also speaks about the right of the child to maintain direct contacts with both parents. Therefore, internationally, it is a well recognised principle of law that the relationship between parents and children do not get dissolved, except in cases of valid adoption. But, some religions do not recognise or accept adoptions.

Though the petitioner was Hindu, the deed of adoption registered, it was not done in accordance of the Hindu Adoption and Maintenance Act, 1956.  The  fundamental premise, on which, the Hindu Law of Adoptions proceeds is that the relationship between the biological parents and the children can never get severed, except in accordance with the provisions of this Act. In such circumstances,  Courts could not issue directions to replace the name of the biological father or mother with that of the stepfather or mother.  The Hon’ble Justice also observed that for instance, the right of a child to inherit the estate of its biological father, will get defeated by a direction to effect correction of entries in the statutory records.

The Court opined that they are of the view that the Ministry of External Affairs is obliged to come up with innovative steps and measures to resolve problems of this nature. The Passport Manual may perhaps have to be amended suitably to incorporate additional columns in the applications for the issue of passports. Apart from the columns where the names of the biological parents are to be indicated, the application form may also contain additional columns where the names of the step-parents could be indicated, wherever applicable. This will reduce or even eliminate the possibility of any discrepancy between the entries in the Birth Register and the School Records or other records.

Therefore, the Court concluded that they are of the view that the writ petition could be disposed of with certain directions, both to the Union of India and to the respondents herein, so that persons similarly placed like the petitioner are not compelled to approach the Court every time for the issue of passports.  Disposing off the writ petition, the Court directed :

            (1) The Ministry of External Affairs, Union of India may incorporate suitable provisions in the Passport Manual and incorporate suitable columns in the applications for the issue of passports, to enable the parties to indicate  either the names of the biological parents or the names of the adoptive parents or the names of the step parents or all of them, according as the situation demands.
            (2) In so far as the case on hand is concerned, the respondents shall issue a passport to the daughter of the petitioner, by indicating the name of the stepfather, in the column reserved for filling up the name of the father.

The Regional Passport Officer was further directed to issue passport within 4 weeks. 

Appears to be a very logical conclusion to some complex issues.

With regards – S. Sampathkumar

13th May 2015.

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