KUM. JAYASHREE P vs THE PRINCIPAL SECRETARY

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 5TH DAY OF SEPTEMBER 2013

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

WRIT PETITION No.37974/2013 (GM-PASS)

BETWEEN: KUM. JAYASHREE P D/O R PREMASWAROOP AGED ABOUT 16 YEARS R/AT NO. 102, 5TH CROSS P & T COLONY, VENKATESHAPURAM BANGALORE-560045 REP. BY R PREMASWAROOP AGED ABOUT 40 YEARS FATHER & NATURAL GUARDIAN ... PETITIONER (BY SRI H RAMACHANDRA, ADV.) AND: 1. THE PRINCIPAL SECRETARY CIVIL AVIATION DEPARTMENT GOVERNMENT OF INDIA NEW DELHI. 2. THE REGIONAL PASSPORT OFFICER KORAMANGALA, BANGALORE-34 3. SMT. SUJATHA W/O R PREMASWAROOP AGED ABOUT 38 YEARS R/AT NO. 21, INCOME TAX LAYOUT K G HALLI, ARABIC COLLEGE BANGALORE-560045 ... RESPONDENTS (BY SRI KALYAN BASAVARAJ, A S G. FOR R1 & 2 R3 – SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO; DIRECT

2 THE R2 TO REGIONAL PASSPORT OFFICER, KORAMANGALA BANGALORE TO ISSUE THE PASSPORT TO THE PETITIONER UNDER TATKAL & DIRECT THE R2 TO DISPENSE WITH THE COMPLIANCE OF ANNX-H TO THE APPLICATION FOR GRANT OF PASSPORT ANNX-G. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING :

O R D E R The petitioner is before this Court seeking for issue of mandamus to the second respondent–Regional Passport Officer, Koramangala, Bangalore to issue passport to the petitioner under Tatkal Scheme. The petitioner is also seeking to direct the second respondent to dispense with the compliance of Annexure-H to the application for grant of passport to the petitioner.

The brief facts are that the petitioner represented through her father is before this Court seeking for issue of passport since she has been selected to participate in the Atlantis SPACE TREK Programme at NASA, USA to which she is being sent through the school viz., St.John’s High School where the petitioner is pursuing her education. Since the request of the petitioner for issue of passport under the Tatkal Scheme had not been considered by the second respondent, the petitioner is before this Court.

3 3. The reason for which the second respondent had not considered the application is due to the fact that the same was not accompanied by a declaration as required under Annexure-H to the enclosures to such application wherein both the father and the mother of the child are required to sign the application. In the instant case, the father and mother of the petitioner had certain marital differences which had ended in litigation before the Court below. In that view, since the mother of the petitioner is not available to sign the form, at this juncture, the prayer of the petitioner requires to be considered in that regard. Insofar as the rejection made by the second respondent, the same is based on the requirement under the Passport Manual, 2010 wherein the issues relating to the children of divorced/separated parents has been referred to, which reads as hereunder: “4. SPECIAL CASES OF MINORS REQUIRING PASSPORTS I. Children of Divorced/Separated parents: 4.1 Application from divorced/separated parents for issue of passports to their minor children has to be processed as follows:-

4 a. A court decree granting divorce would normally award custody of the minor child/children to either parent. The PIA must ensure that the application for the minor’s passport is entertained only from such parent who has been granted custody by the court. While doing so, the PIA must also satisfy himself that the period of limitation for appeal against such decree has expired before issuing the passport. PIA must also ensure that if the other parent has visitation or other rights on the child as per court order the consent of the other parent is also furnished.”

In that light, the fact that the passport could be issued subject to the manner of custody rights that have been granted to such parents is indicated therein. Therefore, if the order dated 08.04.2003 passed in G & WC No.134/2000 (Annexure-A) is perused, it is seen that even prior to the parents of the petitioner filing a petition for divorce by mutual consent, the proceedings had been initiated and ultimately the order was passed on 08.04.2003. By the said order, the custody of the child has been granted to the father with visitation rights to the mother for 15 days during summer vacation and one week during winter vacation. At this juncture, it is the case of

5 the petitioner that the mother of the petitioner is not available for signing the application and in that view, if passport is not issued, the opportunity of the petitioner to take part in the programme in USA would be lost. Further the order dated 30.07.2004 (Annexure-B) would indicate that the parents of the petitioner has filed a petition and they have been granted divorce by mutual consent and they have been residing separately.

In the peculiar facts of the present case, what is also to be noticed is that the petitioner who is a student of St.John’s High School is selected to take part in the said programme as noticed above and is being sent through the School. In such circumstance, I am of the opinion that in addition to the application made by the father on behalf of the minor child, if she also secures an appropriate representation/letter from the School by way of affidavit from the School Authorities to indicate that the student would be taken abroad to participate in the programme without interfering with the visitation rights that has been granted to the mother by the order dated 08.04.2003 and they would ensure that the child would come back to India

6 after participating in the said programme, it would suffice. If such undertaking is filed by the School authorities along with the application of the petitioner, the same shall be treated as compliance of the requirement of the Passport Manual 2010 which has been noticed above and the application of the petitioner shall be processed for the purpose of issue of passport to the petitioner under the Tatkal Scheme subject to the other compliance in accordance with law. The steps in that regard shall be taken by the second respondent as expeditiously as possible, but not later than two weeks from the date on which the undertaking from the School is filed with the second respondent. The writ petition stands disposed of in the above terms. Sri Kalyan Basavaraj, Assistant Solicitor General of India is permitted to file memo of appearance in four weeks. Sd/- JUDGE akc/bms

KUM. JAYASHREE P vs. THE PRINCIPAL SECRETARY