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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