Case Note & Summary
The case involved a minor petitioner, Riddham Deora, who through his natural guardian mother sought issuance of a passport to study abroad after the respondent passport authorities refused the application on the sole ground that the father's consent was missing. The parents were married on 21.02.2002 and the petitioner was born on 07.05.2009. Following matrimonial discord, the father filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights, while the mother filed for divorce under Section 13 of the same Act. The Family Court, Pali, by common judgment dated 09.06.2022, rejected the father's Section 9 application and allowed the mother's divorce petition, dissolving the marriage. The father neither sought custody nor visitation rights thereafter, and the petitioner remained in his mother's lawful custody. The petitioner passed his secondary school examination in 2024 and intended to study abroad. He submitted a passport application through his mother, but the passport authorities refused to process it for want of the father's consent, citing a lack of a clear custody order. The central legal issue was whether a minor's right to personal liberty, education, and travel abroad under Articles 21 and 21A of the Constitution could be denied merely because one parent withheld consent. The petitioner argued that after divorce and in the absence of any custody or visitation claim by the father, obtaining his consent was impossible and that the technical objection violated the petitioner's fundamental right to travel abroad. The respondents contended that the Passport Rules required consent from both parents when the marriage was dissolved or parties resided separately and custody was not clearly assigned, and that the Family Court judgment did not specify custody. The High Court analyzed the right to travel abroad as an integral facet of personal liberty under Article 21, observing that any procedure restricting this right must be just, fair, and reasonable. The court noted that the passport issuing authority could not insist on consent from both parents for a minor child. It relied on the guidelines in the Passport Manual and precedents, particularly L. Deepika v. Union of India, 2022 SCC OnLine TS 2481, which clarified that if an affidavit in Annexure-C (earlier Annexure-G) of Schedule III of the Passport Rules, 1980 was submitted, the passport authority could issue the passport without both parents' consent, even if one parent refused. The court found that since the father had not sought custody or visitation and the child was in the mother's lawful custody, the absence of a specific custody order could not justify denying the passport. The court concluded that the refusal was arbitrary and that the fundamental right could not be prejudiced on technical grounds. Accordingly, the court held that the passport authority must process the petitioner's application in accordance with Annexure-C without insisting on the father's consent.
Headnote
A) Constitutional Law - Right to Travel Abroad - Article 21 includes right to travel abroad as integral facet of personal liberty; any restriction must follow just, fair and reasonable procedure - Constitution of India, Article 21 - The passport authority refused a minor's passport due to missing father's consent after divorce; the court held that such refusal on a technical count cannot deprive the petitioner of the constitutional right to travel abroad - Held that the right cannot be prejudiced merely because no custody order exists (Paras 13-14). B) Passport Law - Minor Passport Application - Passport issuing authority cannot insist on consent of both parents; a sworn affidavit in Annexure-C (earlier Annexure-G) of Schedule III is sufficient - Passport Rules, 1980, Schedule III, Annexure-C, Annexure-G - The court relied on L. Deepika v. Union of India, noting that no court permission is required if one parent refuses consent, provided Annexure-C is submitted - Held that passport can be issued without both parents' consent upon submission of Annexure-C (Paras 15-16). C) Family Law - Custody and Guardianship - When divorce decree is passed and one parent has lawful custody with no custody or visitation claim by the other parent, the other parent's consent for minor's passport is not mandatory - Hindu Marriage Act, 1955, Sections 9 and 13; Guardians and Wards Act, 1890 - The parents' marriage was dissolved on 09.06.2022; father neither sought custody nor visitation; petitioner stayed with mother - Held that father's consent cannot be insisted in such circumstances (Paras 6-12). D) Writ Jurisdiction - Arbitrary Administrative Action - Technical refusal by passport authority defeats fundamental rights and is amenable to writ court's interference - Constitution of India, Article 21 - The court considered whether passport authorities can decline on technical count and found that valuable constitutional rights cannot be taken away arbitrarily - Held that petitioner entitled to relief (Paras 5-14).
Issue of Consideration
Whether a minor's right to personal liberty, education and travelling abroad under Article 21 and 21A of the Constitution of India can be denied merely because one parent withholds passport consent?
Final Decision
The High Court held that the passport authorities could not refuse to issue a passport to the minor petitioner solely on the ground of missing father's consent. The court directed the passport authorities to process the petitioner's application in accordance with Passport Rules, 1980, Schedule III, Annexure-C, without insisting on consent of both parents.
Law Points
- Right to travel abroad is integral facet of Article 21 personal liberty
- procedure restricting it must be just
- fair and reasonable
- passport authority cannot insist on consent of both parents for minor
- sworn affidavit in Annexure-C of Schedule III of Passport Rules
- 1980 suffices
- no court custody order necessary when one parent has lawful custody and other has not sought custody or visitation.
