1 MGJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition (Ld) No.696 of 2010 1 Vishwas V. Joshi and another ..Petitioners vs. Union of India and others ..Respondents Mr.P.S.Dani i/b Mr.A.G.Damle for petitioners Mr.A.J.Rana, Sr.Advocate with Mr.H.V.Mehta for respondent nos.1 and 2. CORAM : J.N.PATEL, ACTING C.J. AND S.C. DHARMADHIKARI, J. DATED : 18th June 20100 P.C. Rule. By consent rule made returnable and heard forthwith. 2 The petition has been filed by the adoptive parents of a child Master Rohan for seeking a direction against respondents to issue to the petitioners passport for their child in the name of “Rohan Vishwas Joshi” and be directed not to include the name of the biological father in the said document. 3 It is the contention of the petitioners that petitioner no.2 Mrs. Jaee Vishwas Joshi is the biological mother of the child Rohan who had earlier married to Rahul Jayant Abhyankar, respondent no.3 residing at “Sulabh” Survey No.104/21, 1st floor, Bharti Niwas Cooperative Society, Erandawane, Pune and that the child Rohan was born out of the said wedlock between petitioner no.2 and the said Rahul Jayant Abhyankar on 18th March, 2 2003 and was named as “Rohan”. The petitioners have annexed the birth certificate of child Rohan. As petitioner no.2 could not carry on along with her ex husband Rahul Abhyankar, the petition under section 13(b) of the Hindu Marriage Act seeking divorce by mutual consent was filed in Family Court at Pune which was numbered as EA-584/2006 and obtained the divorce by mutual consent. After obtaining the divorce from Rahul Jayant Abhyankar, petitioner no.2 got remarried to petitioner no.1 on 18th October, 2008. Thereafter the petitioners decided to adopt Rohan who was born out of the first marriage of petitioner no.2. Accordingly adoption ceremony was performed and deed of adoption came to be executed between the parties i.e. petitioners and respondent no.3 i.e. Mrs. Jaee Vishwas Joshi nand Vishwas V. Joshi of the first and second part and Mr.Rahul Jayant Abhyankar as party of the third part. According to the deed of adoption the child Rohan came to be adopted by Mr. Vishwas Vinayak Joshi. The petitioners have applied for passport of their son Rohan in the name of adoptive parents by deleting the name of biological father i.e. respondent no.3. The respondent Passport Authority by letter dated 27th February, 2010 addressed to petitioner no.2 informed that as per the latest instructions from the Ministry of External Affairs, New Delhi in the event of remarriage after divorce, the name of step father cannot be written in the passport of children from the previous marriage as the relationship of the child to his biological parents subsists even after divorce by parents and, therefore, such applicants must write the names of their biological parents in the application form. Therefore, the petitioners are required to approach this Court. 3 4 The learned Counsel for the petitioners has contended that the Passport Authorities particularly the Ministry of External Affairs, New Delhi have not taken into consideration the case of adoption which is permitted under the Personal Law of the petitioners and respondent no.3 while issuing the instructions. It is contended that after adoption the child is known as the child of their adoptive parents and in the present case child Rohan having been adopted by the petitioners would be known as child of the adoptive father i.e. Vishwas V. Joshi and not of his biological father Rahul Jayant Abhyankar. It is submitted that respondent no.3 was duly served with the notice and he has sent affidavit on Rs.100/- non judicial stamp as he does not want to contest the matter. The said affidavit dated 25th April, 2010 is taken on record and marked “X” for identification. It is, therefore, submitted that the biological father has no objection for deleting his name and substituting it by the name of adoptive father. Respondent nos. 1 and 2 are not justified in refusing to issue the passport by granting the passport facility to the minor child Master Rohan as Master Rohan Vishwas Joshi. 5 On behalf of the respondents it is submitted that the instructions from the Ministry of External Affairs, New Delhi are in the event of remarriage after divorce that the name of the step father cannot be written in the passport of the children of the previous marriage and it does not pertain to the cases where some one has adopted the child as per the custom and if the same is permissible under the personal law of the parties. It is submitted that the impugned communication has only put the petitioners on notice to make it convenient to call on the office of the Regional Passport 4 Office and that the issue could not have been resolved. 6 Mr. Rana, learned Senior Counsel appearing for respondent nos. 1 and 2 submits that the respondents would abide by the orders of this Court. 7 We would like to make it clear that this Court is disposing of this petition on the basis of deed of adoption and the affidavit filed by the biological father, respondent no.3 herein, Rahul Jayant Abhyankar and has not adjudicated the personal rights of the minor child Master Rohan on the issue of adoption. 8 Section 12 of the Hindu Adoption and Maintenance Act, 1956 reads as under: “12 Effects of adoption: - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that - (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.” 5 The primary and the principal result of adoption is that of transferring the adopted boy or girl from his or her natural family into the adoptive family. It confers upon the adoptee the same rights and privileges in the family of the adopter as the legitimate natural born son or daughter for all purposes with effect from the date of adoption. The adoptee is deemed to be the child of his or her adoptive father or mother for all purposes and from the date of adoption all the ties of the child in the family of his or her birth are to be deemed to have been severed and replaced by those created by the adoption in the adoptive family. 9 Therefore, in view of the fact that minor child Master Rohan has been adopted by the petitioner no.1 Vishwas V. Joshi by virtue of the deed of adoption who is now adoptive father and does not remain to be step father of the child, we direct respondent nos.1 and 2 to issue the passport to Master Rohan in the name of his adoptive father by deleting the name of biological father Rahul Jayant Abhyankar and grant the passport facility as requested by the petitioners. Rule is made absolute in the aforesaid terms with no order as to costs. ACTING CHIEF JUSTICE S.C. DHARMADHIKARI, J.