Case Note & Summary
The petitioner, a minor girl aged about 16 years, was born on 27.10.2007 in Margao, Goa, India, to Indian parents. Her parents married in Goa in 2007. In 2010, her father abandoned the family. The mother obtained a divorce and permanent custody of the child by order of the Civil Court dated 03.01.2019. The petitioner was issued an Indian passport in 2014, valid until 2019. In 2015, the mother registered her birth in Portugal and acquired Portuguese citizenship, also obtaining an Overseas Citizen of India certificate. The petitioner travelled to the United Kingdom with her mother and was issued a Residence Card by the UK government, which stated her nationality as Indian. She was later granted Indefinite Leave to Remain in the UK. When the petitioner's passport was due for renewal in 2019, her mother applied to the High Commission of India in London. By letter dated 05.08.2020, the respondent no.2 rejected the application on the ground that the petitioner was a 'single parent minor child' and the physical custody was with the parent who is a foreign national, making her ineligible for an Indian passport. The petitioner challenged this decision by way of a writ petition under Article 226 of the Constitution. The court examined the provisions of the Citizenship Act, 1955 and the Passports Act, 1967. It held that the petitioner is a citizen of India by birth under Section 3 of the Citizenship Act, having been born in India on 27.10.2007. The subsequent acquisition of Portuguese citizenship by her mother does not affect the petitioner's citizenship. The Passports Act does not contain any provision that allows denial of a passport on the ground that the applicant is a minor child of a single parent who is a foreign national. The court also noted that the petitioner has not acquired any foreign citizenship and continues to hold Indian citizenship. The impugned decision was quashed, and the respondents were directed to renew the petitioner's passport within four weeks. The court further directed that the passport be issued without any adverse remarks regarding the petitioner's eligibility.
Headnote
A) Citizenship Law - Citizenship by Birth - Section 3 of Citizenship Act, 1955 - A child born in India on or after 26.01.1950 is a citizen of India by birth irrespective of the nationality of parents. The subsequent acquisition of foreign nationality by one parent does not affect the citizenship of the child born in India. (Paras 12-13) B) Passport Law - Denial of Passport - Passports Act, 1967 - A passport cannot be denied to an Indian citizen on the ground that the applicant is a single parent minor child whose physical custody is with a foreign national parent. The Passports Act does not provide for such a ground of refusal. (Paras 8, 14-15) C) Constitutional Law - Right to Travel - Article 21 of Constitution of India - The right to travel abroad is a fundamental right under Article 21 and cannot be curtailed except by procedure established by law. Denial of passport without legal authority violates this right. (Para 16) D) Citizenship Law - Citizenship by Descent - Section 4 of Citizenship Act, 1955 - A person born outside India on or after 26.01.1950 is a citizen of India by descent if his father is a citizen of India at the time of his birth. However, this provision does not apply to a child born in India. (Para 12)
Issue of Consideration
Whether a minor child born in India to Indian parents, who subsequently acquires foreign nationality by descent from her mother, can be denied renewal of Indian passport on the ground that her mother is a foreign national and has physical custody of the child
Final Decision
The court allowed the writ petition, quashed the impugned letter dated 05.08.2020, and directed the respondents to renew the petitioner's Indian passport within four weeks from the date of the order, without any adverse remarks regarding her eligibility.
Law Points
- Citizenship by birth under Section 3 of Citizenship Act
- 1955 is not lost merely because one parent acquires foreign nationality
- Passport cannot be denied to a minor citizen on ground of single parent being foreign national
- Fundamental right to travel abroad under Article 21 of Constitution cannot be curtailed without authority of law
