The Karnataka High Court, Bengaluru while dealing with a writ petition seeking issuance of a writ of mandamus directing the Regional Passport Officer to renew/ re-issue passport in terms of the application observed that the passport manuals are the guidelines as a solution to answer circumstances but cannot run counter to the statute.

A Single Bench of Justice M. Nagaprasanna stated –

"The Rules are framed by the Central Government in terms of Section 24 of the Act. Therefore, they are part of the statute and are statutory. The Passport Manual are guidelines to issue a passport are a solution to answer circumstances that would emerge, but, cannot run counter to the statute, as they are not statutes. Therefore, the 2nd respondent will have to consider the application of the petitioner in terms of the Rules and seek any document or clarification from the parent in terms of the Rules and not in terms of the Passport Manual."

The Bench further observed that it is necessary for the Central Government to bring in such an amendment to the Rules if it wants the situation that emerged in the Manual to be tackled, failing which, rejecting passports relying on the Manual particularly, in the case of passport of minors, would be rendered unsustainable as they would suffer from want of tenability.

The Court also said, "Since the Rules themselves envisage situation of the kind that has emerged in the case at hand, the reliance being placed on the Manual which runs counter to the Rules sans countenance."

Advocate Raghavendra Prasad appeared on behalf of the petitioner.

Government Advocate Aditya Singh appeared for the respondents.

Brief Facts –

The petitioner and her husband got married and from the wedlock, a child was born being issued a passport i.e., a minor's passport. After about 8 years of the birth of the child, the relationship between the petitioner and her husband turned sore. The petitioner filed a petition seeking a decree of divorce. Earlier the petitioner had also filed a petition seeking custody of the minor son before the concerned Court. The said matter is pending consideration before the concerned Court. The petitioner who claims to have custody of the son, even as of date, seeks to visit Australia to celebrate Christmas along with her son and accordingly, applied for renewal/re-issuance of the minor's passport on the website of the respondent. A number was generated pursuant to the application, so submitted.

Since the petitioner had separated from her husband, she has not submitted the specimen signature of her husband for re-issuance of the passport in favour of her son. Despite the passage of two months, there was no communication from the hands of the respondent but was informed that the minor son's passport would not be re-issued as the minor son's father's consent was mandatory for renewal/re-issuance of the passport. The petitioner claims to have visited the office of the respondent several times, all of which went unheeded, and, therefore, approached the High Court seeking a direction to the respondent for the re-issue of passport to the minor son, who is with the petitioner.

The counsel for the petitioner contended before the Court that in the event there is a dispute regarding the marriage between the husband and the wife, the signature of one of the parents of the minor child, who is admittedly with the petitioner would be sufficient as the proceedings for custody is still pending consideration.

On the other hand, the counsel for the respondents submitted that in the pending divorce cases, the signature of the other parent is mandatory as the other parent would become entitled to register proceedings against the respondent for having issued the passport without the consent of the other parent and therefore, no fault can be found with the denial of renewal/ re-issuance of passport by the respondent.

The issue before the Court for consideration was whether the respondent was right in denying the re-issuance of the passport to the minor. The Court in this regard noted, "This Court is aware of the fact that manifold circumstances arise before the Passport Authorities, when they are faced with the problem of granting passport. The Manual for smooth functioning is also an accepted norm but it cannot run counter to the Rules. The Schedules noticed hereinabove and the documents that are necessary to be produced are all borne out of the Rules, as they are schedules appended to the Rules."

The Court further ordered that the petitioner is entitled to a direction by the issuance of a mandamus to the respondent to consider her application.

Accordingly, the Court allowed the writ petition.

Cause Title – S. Nancy Nithya v. The Government of India & Ors.

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