Kerala High Court
Union Of India vs Shiny Shukoor on 4 April, 2022
Author: Murali Purushothaman
Bench: S.Manikumar, Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 4TH DAY OF APRIL 2022 / 14TH CHAITHRA, 1944
WA NO. 436 OF 2022
AGAINST THE JUDGMENT IN WP(C) 5284/2022 OF HIGH COURT OF KERALA
APPELLANTS:
1 UNION OF INDIA
REPRESENTED BY THE ASSISTANT SOLICITOR GENERAL OF
INDIA
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682032
2 REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICE, COCHIN BUILDING, PANAMPILLY
NAGAR, COCHIN, ERNAKULAM, PIN - 682036
3 ASSISTANT PASSPORT OFFICER
PASSPORT SEVA KENDRA, KOTTAYAM
4 SQUARE PLAZA, M.C. ROAD
OPP MAHADEVA TEMPLE
NAGAMPADAM, KOTTAYAM, PIN - 686001
BY SRI S.MANU, ASGI
SRI.JAISHANKER V NAIR, CGC
RESPONDENT/PETITIONER:
SHINY SHUKOOR
AGED 51 YEARS
D/O M. M. MUSTAFFA
RAMADAN MANZIL, VETTIMUKAL P O
ETTUMANOOR, KOTTAYAM DISTRICT, PIN - 686631
SRI.S.RANJIT
SRI.GOKULDAS V
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.436-2022 2
JUDGMENT
Murali Purushothaman, J.
The marriage between the writ petitioner and her husband was dissolved by Ext.P2 judgment of the Family Court, Kottayam and the said judgment has become final. O.P.No.444/2021 filed by the petitioner's erstwhile husband seeking declaration of guardianship of two children of the said wedlock is pending adjudication.
2. The petitioner's minor daughter Sumaya Abdul Shukoor @ Sumaya is the holder of Indian Passport bearing No.R6687676 which is due to expire on 8.5.2022. The petitioner is presently employed abroad at Egypt and her daughter Sumaya is studying there since 2019. The petitioner and her daughter reached India on 15.9.2021 and due to Covid-19 pandemic, they could not go back to Egypt. Since the passport of Sumaya is expiring on 8.5.2022, the petitioner W.A.436-2022 3 approached the Assistant Passport Officer, the third respondent, with an application for re-issuance of the passport. The petitioner also sought for change of her daughter's name from Sumaya to Sumaya Abdul Shukoor. Along with the application for re-issuance of passport, the petitioner made Annexure-C declaration which is to be submitted by applicant's parent or guardian for issue of passport to minor when one parent has not given consent. In Annexure-C declaration under the Passport Rules, 1980, which has been produced as Ext.P4 in the writ petition, the petitioner has stated that the consent of the father of the minor has not been obtained for the reason that the parents are judicially separated and custody of the minor child has not been defined in the Court's decree. The petitioner also submitted Annexure-D declaration which is to be submitted by the parents, without the signature of the father of the minor child as he refused to sign the said W.A.436-2022 4 declaration.
3. Pursuant to Ext.P3 application, the petitioner and her minor daughter were asked to appear before the third respondent for verification of documents and the third respondent returned the application and the documents with the endorsement 'single parent case' and directed to produce the father's consent in Annexure-D or produce a court order. The processing of the application was kept on hold for resubmission on the said ground. The writ petition is filed challenging the said endorsement made on Ext.P6 and for direction to the respondents to reissue the passport of the petitioner's minor daughter Sumaya.
4. When the writ petition came up for consideration, the learned Single Judge observed that there is already a form, Annexure-C, submitted by the petitioner along with the application giving an undertaking that the entire responsibility would be of W.A.436-2022 5 her as there is already an order of divorce, but, despite that the third respondent has raised the objections endorsed in Ext.P6 communication. The learned Single Judge observed: "This is a classic case of highhandedness at the hands of Assistant Passport Officer in raising objections for re-issuance of the passport by a single parent facing a matrimonial discord directing them to approach the court and obtain the court order." Though the learned Single Judge took note of the submission of the ASGI on behalf of the respondents that during the pendency of the writ petition, the respondents have processed the application of the petitioner on 22.2.2022 and the passport shall be reissued in the name of the minor child, Sumaya, the Court observed in paragraphs 4 to 6 of the judgment as follows:-
"4. This Court has come across similar litigation day in and day out whereby the petitioners/applicants for re-issuance of passport particularly either of the parent who is facing the matrimonial discord or W.A.436-2022 6 there is already a separation, are compelled to approach this Court for appropriate order, despite filling the form Annexure 'C'. The officers at the helm of affairs exercising the powers for issuing the passport are supposed to deal with the application in a pragmatic and reasonable manner, but should not reject the application in the manner and mode as extracted above. Knowing fully well that this Court would have expressed concern with regard to the spate of litigation and may come down heavily on the action of the respondents, in anticipation of that processed the application of the petitioner, but for redressal of the grievance, is impelled to shell out litigation expenses.
5. In view of the statement made on behalf of the Passport Officer that the application has been processed and passport shall be issued, this Court is sanguine of the fact that the passport shall be issued within a period of one week from today. But, it would be subject to the cost of the litigation of Rs.25,000/- to be paid by respondent No.3 from his own salary.
6.This order is also directed to be circulated to all the passport officers who have been raising such type of objections compelling the affected parties to approach this Court for no rhyme and reasons. Copy of the order is directed to be handed over to the ASGI for circulation to all the passport officers.W.A.436-2022 7
It is challenging the said judgment that the respondents have come up in appeal.
5. The learned counsel for the appellants would contend that, in view of the submission on behalf of the respondents that they have processed the application of the petitioner on 22.2.2022 and the passport shall be reissued in the name of minor Sumaya, the writ petition has for all intent and purpose became infructuous and the learned Single Judge ought not to have disposed of the writ petition with adverse remarks and imposed costs on the third appellant. It is submitted by the learned counsel for the appellants that it was only to ensure that the issuance of passport to the minor child would not hamper the rights of the other parent with respect to the child, the third respondent was constrained to insist for the consent of the father or a judicial order. It is also submitted that there was no mala fides on the part of the third respondent in making W.A.436-2022 8 the impugned endorsement in Ext.P6 and he was only following routine administrative procedure and it is an action taken in good faith and in exercise of due diligence. The learned counsel for the appellants further submits that the respondents did not get an opportunity to justify their stand before the learned Single Judge by filing an affidavit.
6. We have heard Sri. Jaishanker V. Nair, the learned Central Government Standing Counsel for the appellants and Sri. S. Ranjith, the learned counsel for the respondent.
7. On going through the appeal memorandum and hearing the learned Central Government Standing Counsel for the appellants and the learned counsel for the respondent, we find that the explanation given by the appellants that the 3rd appellant while issuing Ext. P6 was only following routine administrative procedure and the action taken was in good faith, is satisfactory. W.A.436-2022 9 Since it is also brought to our notice that the passport of minor Sumaya was processed to be reissued during the pendency of the writ petition without insisting for consent in Annexure -D or court order, we feel that the writ appeal can be disposed of by setting aside the imposition of costs and the observations made in the impugned judgment against the respondents.
Accordingly, the imposition of costs of Rs.25,000/- on the third appellant/third respondent and the observations made against the respondents in the judgment of the learned Single Judge are set aside.
The writ appeal is allowed to the said extent.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
MURALIPURUSHOTHAMAN JUDGE spc/ W.A.436-2022 10