IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 25292 of 2011(J) --------------------------------------- PETITIONER(S): ------------------------- LATHIKA, D/O.SAROJINI, AGED 30 YEARS, LATHIKA VILASAM, JANARDHANAPURAM, VARKALA, TRIVANDRUM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): ------------------------- THE REGIONAL PASSPORT OFFICER, PASSPORT OFFICE, TRIVANDRUM- 695 001. BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON 27/10/2011 DELIVERED THE FOLLOWING: rs WP(C).No. 25292 of 2011(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE BIRTH CERTIFICATE OF THE MINOR CHILD OF THE PETITIONER ISSUED BY THE TRIVANDRUM CORPORATION. EXT.P2 TRUE COPY OF THE AFFIDAVIT PREPARED BY THE PETITIONER DATED, 20-08-2011. EXT.P3 TRUE COPY OF THE AFFIDAVIT PREPARED BY THE PETITIONER DATED 20-08-2011. EXT.P4 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE J.F.C.M.,VARKALA DATED 23-8-2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 25292 of 2011 J ``````````````````````````````````````````````````````````` Dated this the 27th day of October, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner states that she is the mother of a minor child by name Nicolas Kiran, who was born to her without any marriage between herself and one Ravi. Ext.P1 is the birth certificate of the child. 2. She is the holder of passport No.J 1278139 issued by the respondent and she wanted to get a passport for the minor child. The Passport Rules and the Passport Manual, 2010 provide that, in the case of a child having a single parent and the applicant is the mother, the Passport Issuing Authority should obtain an affidavit in Form-C to Appendix-I, from the mother, which should be sworn to before a Magistrate. However, Form-C shows that the affidavit can be sworn to before a Judicial First Class Magistrate or a Notary Public. 3. Petitioner approached the Judicial First Class W.P.(C) No.25292/2011 : 2 : Magistrate-I, Varkala for attesting an affidavit in Form-C. However, the Magistrate declined to attest the affidavit and in the circumstances, the writ petition is filed with the following prayers:- “(i) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the JFCM, Varkala to attest the affidavits submitted by the petitioner to be submitted before the respondent for the issuance of a passport to the minor child of the petitioner - Nicolas Kiran, forthwith. (ii) Issue a writ of mandamus or any other appropriate writs, orders of directions commanding the respondent to issue a passport to the minor child Nicolas Kiran on the application submitted by the petitioner, without insisting for an affidavit required to be submitted along with a single parent application to be attested by the Judicial Magistrate of First Class.” 4. According to the petitioner, it was because the W.P.(C) No.25292/2011 : 3 : learned Magistrate did not know the truth of the contents of the affidavit to be correct that he refused to attest the affidavit. In view of these allegations, a report was called for from the learned Magistrate. Accordingly, a report has been received in this Court, where the learned Magistrate has attempted to justify his refusal on two grounds. First one is that, neither the petitioner nor the counsel, who brought her to him, were known to him. The second reason stated by the learned Magistrate is that the learned Magistrate was unaware of the correctness of the factual statements made in the affidavit and, therefore, did not want to endorse such statements by attesting an affidavit sworn to by the deponent. Therefore, the learned Magistrate says that he could not attest the affidavit in question. 5. Having considered the case of the petitioner in the light of the report furnished by the learned Magistrate, I am inclined to think that the learned Magistrate was not correct in W.P.(C) No.25292/2011 : 4 : assuming that by attesting an affidavit sworn to before him, he was affirming the correctness of the factual statements made in the affidavit. Attestation is only signing of a document to signify that the attestor is a witness to the execution of the document. Therefore, the attestation has only the effect of verifying the signature of the deponent and the responsibility for the correctness or otherwise of the factual statements made in the affidavit is always that of the deponent and none else. 6. However, the question is whether this Court will be justified in issuing a writ of Mandamus to the learned Magistrate to attest the signature of the petitioner. A writ of Mandamus can be issued only in favour of a person who establishes a legal right in himself and is issued against a person who has a legal duty to perform but has failed and or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. It is true W.P.(C) No.25292/2011 : 5 : that, when a single parent makes an application for passport in respect of a minor child, it is a statutory requirement that such parent, should file an affidavit in the prescribed form. But, that by itself, does not mean that such a parent has a legal right to get such an affidavit attested by any particular Magistrate. It cannot also be said that it is one of the duties of the Magistrate either by operation of statute or otherwise, to attest such an affidavit. May be such a refusal by a Magistrate would cause personal inconvenience to the person concerned, but that is no justification for this Court to compel an unwilling Magistrate who does not have any statutory duty in this behalf to attest the signature of anyone, by issuing a writ of Mandamus. Therefore, this Court will not be justified in issuing a writ of Mandamus in a case like this. This is all the more so in a case where the Magistrate has stated that he was not familiar with either the applicant or the person who brought her to him. W.P.(C) No.25292/2011 : 6 : 7. In such circumstances, I am not persuaded to think that the petitioner has made out a case for issuance of a writ of Mandamus against the learned Magistrate to attest the signature of the petitioner. Writ petition is dismissed. Sd/- (ANTONY DOMINIC, JUDGE) aks/22/10 // True Copy // P.A. To Judge