IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 11325 of 2011(M) -------------------------- PETITIONER(S): --------------- 1. LIZAN NAJEEM, AGED 9 YEARS, S/O.HARA ONE A., GULFLAND, MAMOM, KIZHUVILLOM P.O. ATTINGAL, REPRESENTED BY HIS MOTHER HARA ONE A. 2. HARA ONE A., D/O.HAJIRA BEEVI, GULFLAND, MAMOM, KIZHUVILLOM P.O., ATTINGAL. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): --------------- 1. THE PASSPORT OFFICER, PASSPORT OFFICE, TRIVANDRUM-695 001. ADDL. R2 IMPLEADED AS PER ORDER DT.1.6.11 IN I.A.NO.7109/11 IN WPC NO.11325/11 2. YOUSUF, KALIYILIL VEEDU, KADAKKOD, NADATHARA POST, KOLLAM-680751 ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SRI.M.DINESH FOR ADDL.R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11325 of 2011(M) APPENDIX ---------------- PETITIONER'S EXHIBITS ---------------------------------- P1: TRUE COPY OF THE MARRIAGE CERTIFICATE, DT.22.12.07, ISSUED BY THE MUSLIM JUMA-ATH, ATTINGAL. P2: TRUE COPY OF THE MARRIAGE CERTIFICATE, DT.8.10.09 ISSUED BY THE NANNATTUKAVU POTHERNCODE MUSLIM JUMA-ATH P3: TRUE COPY OF O.P.NO.1376/09 FILED BY THE 2ND PETITIOENR BEFORE THE FAMILY COURT, NEDUMANGAD P4: TRUE COPY OF O.P.NO. 1375/09 FILED BY THE 2ND PETITIOENR BEFORE THE FAMILY COURT, NEDUMANGAD. P5: TRUE COPY OF THE DMMA NO.228/11 FILED BY THE 2ND PETITIONER BEFORE THE FAMILY COURT, NEDUMANGAD P6: TRUE COPY OF THE PASSPORT NO.G.8933717 ISSUED TO THE 2ND PETITIONER P7: TRUE COPY OF THE APPLICATION FOR PASSPORT FOR THE 1ST PETITIONER SUBMITTED BY the 2ND PETITIONER. P8: TRUE COPY OF THE AFFIDAVIT DT.31.3.11 SWORN BY THE 2ND PETITIONER. P9: TRUE COPY OF THE BIRTH CERTIFICATE OF THE 1ST PETITIONER SHOWING HIS DATE OF BIRTH P10: TRUE COPY OF THE ENDORSEMENT MADE BY THE RESPONDENT ON EXT.P7 APPLICATION FOR PASSPORT. RESPPONDENT'S EXHIBITS: NIL TRUE COPY PA TO JUDGE. ANTONY DOMINIC, J. --------------------------------------------- WP(C) No. 11325 of 2011 --------------------------------------------- Dated this the 12th day of August, 2011 JUDGMENT First petitioner is a minor and the second petitioner is his mother. Litigations are going between the second petitioner and her husband, the father of the first petitioner. It appears that he is also an accused in a Criminal Case filed by the second petitioner alleging offence under Section 498A of the Indian Penal Code and according to the second petitioner he is absconding. 2. Second petitioner wanted to take the child, the first petitioner, abroad during school vacations and for that purpose, an application for passport was made. That passport application was rejected with an endorsement by the passport issuing authority to the effect that a case is going at Family Court and that the father's consent or court order regarding the custody of the child to the second petitioner is necessary. It is aggrieved by the rejection of the application, this writ petition is filed. 3. Additional second respondent is the father-in-law of the second petitioner. He also confirms about the non availability of the father of the child. So far as legality of the rejection of the WP(C) No. 11325 of 2011 2 application made by the second petitioner for passport for the first petitioner is concerned, in a situation where only one of the parent is able to apply for passport, the requirement to be satisfied has been laid down in the instructions issued by the Government of India which provides that : “However, in case the applicant parent is not in a position to get the consent of the other parent, FOR WHATEVER REASON, the parent applying for the passport of the minor may sign the form and submit a sworn affidavit as per Annexure “G” stating the facts and circumstances of the case along with the application. The affidavit should also state that in case of a court case he/she would be responsible and not the passport office. In such cases, where only one parent is applying, the physical appearance of the child may be requested to ensure the applicant's parent has the actual custody of the child”. 4. Second petitioner submits that in compliance with the above she had filed Ext.P8 affidavit which statement is unrebutted. Therefore in the light of Ext.P8 affidavit filed the petitioner meets the requirement of the aforesaid instructions, and for that reason, even of litigations are pending ,rejection of the application made can not be sustained. 5. The additional second respondent, the grand father of WP(C) No. 11325 of 2011 3 the child, submits that although he has no legal right to resist the request of the petitioners, he would like to see that the child remains in India, at least until the child completes his school education. This sentimental wish of the grandfather cannot said to be unreasonable and therefore this Court directed the petitioner to file an affidavit indicating her views in the matter. Accordingly, the second petitioner filed an affidavit dated 4th August 2011, the relevant part of which, reads as follows: “It is submitted that at present I do not intend to remove the child permanently out of India after getting the passport. As of now the child will be taken out of India only for temporary periods during the vacations and other occasions to visit our relatives abroad. The child is presently studying in the schools at Trivandrum”. 6. Though the averments in the affidavit do lack clarity, still, she has made it clear that what is now intended is to take the child out of India only for temporary visits and I record the said statement made at the Bar. As an additional precaution, I also direct that whenever the second petitioner intends to take the child out of country during vacations, before leaving the country, the second petitioner shall file an affidavit before Family Court, Nedumangad where DMMA No.228/2011 and WP(C) No. 11325 of 2011 4 O.P.No.1375/2009 are pending, and that the affidavit should contain the date of departure and date of return to the county. 7. In view of my finding the eligibility of the petitioner to have the application considered, I direct that it will be open to the second petitioner to make a fresh application, producing a copy of this judgment along with the affidavit as required and if such an application is filed, it will be accepted and action in accordance with law, shall be taken thereon. The writ petition is disposed of as above. ANTONY DOMINIC, JUDGE. rkc