Bench:

Justice Vipin Sanghi

Issue:

Can a natural mother give her child in adoption to someone without the consent of the child's natural father, who is alive but has renounced from all his responsibilities in regard of that child and his wife, after a divorce from mutual consent?

Facts:

• The petitioner was born in Kolkata in November, 1995. her natural parenst are Abhijit Ghosh and Rajeshwari Ghosh, who later became Rajeshwari Chattoraj. When the petitioner was about 2 years old, the natural parents separated by obtaining a decree of divorce by mutual consent.

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• As far as the petitioner was concerned, the terms agreed between her natural parents provided that Rajeshwari will not claim maintenance for the minor child at present or in future from petitioner's father. Petitioner's mother would maintain her and the petitioner's father had no right to see the child ever or interfere in any matter regarding rearing of the child, he won't even have right to claim for custody of the petitioner.

• Rajeshwari then married Surojit Chattoraj in 1999 and by registered deed of adoption in 2006, the petitioner was given in adoption by her mother to her husband. The petitioner submitted that religious ceremonies to mark her acceptance by her adopted father was also held, and were attended by members of family and friends of the family.

• In 2010, the petitioner applied for a passport, through her mother in the Regional Passport Office (RPO), New Delhi. The petitioner was required to provide inter alia, the registered adoption deed, which was also provided. After much waiting, the petitioner was informed by the impugned communication her application could not be accepted, as it had been found on scrutiny that the petitioner's biological father's name, as per birth certificate, had not been mentioned in the passport application form, and the adoption deed was not in accordance with HAMA, 1956.

• Consequently the petitioner filed a petition (this one), accusing the respondent authority of acting arbitrarily, illegally and malafide.

Petitioner's Arguments:

• RPO has no authority or jurisdiction to deny the issuance of a passport to the petitioner by going into the legality of the adoption deed. The adoption has been duly registered.The RPO cannot question, or sit in judgment over the validity, or otherwise, of the adoption deed.

• The respondent authority does not function as an adjudicating authority, who could rule on the validity or otherwise of the adoption deed. The only grounds on which the passport can be refused by the RPO are contained in Section 6 of the Passport Act, 1967 and the ground raised by RPO in this case is not mentioned as a ground in Section 6 of the Passport Act.

• By declining the passport to the petitioner, petitioner's fundamental right to travel has been infringed. \

• Even otherwise it cannot be said that the adoption deed is not in accordance with HAMA. Section 9 of HAMA provides that the mother of a child has the capacity to give the child in adoption. Provisions of section 9(2) also stands fully satisfied, in as much, as it can be said that the petitioner's natural father has ‘finally renounced' the petitioner's world, in as much, as, he had, at the time of obtaining divorce by mutual consent, given up his rights to have anything to do with the petitioner, and he had also renounced his responsibilities towards the petitioner as a father.

• The reliance was placed on the definition of the expressions ‘renounce' and ‘renounce the world' and ‘renouncing', as contained in the Advanced Law Lexicon, Black Law's Dictionary and the Concise Oxford Dictionary.

Respondent's Arguments:

• The RPO is enjoined by Section 5 of the Passports Act to make such an enquiry as it may consider necessary and thereafter by any order in writing, either issue the passport or refuse the same. Under section 5(3) of the Passports Act, it is provided that in case a passport is issued with an endorsement or is refused, the passport officer is obliged to record his reasons in brief, which has been done in present case.

• Apart from the grounds specifically mentioned under Section 6, the passport officer can refuse issuance of a passport on the ground that the information furnished by the applicant is incorrect or insufficient, and can require the applicant to resubmit the application by providing the correct and complete information.

• In the petitioner's passport application form, the name of the father was mentioned as that of the adopted father and not the natural father. During the course of verification of the factual disclosures made in the petitioner's application, the petitioner was required to provide the adoption deed. The adoption deed, though registered, is not valid, since, even a bare perusal of the adoption deed shows that the consent of the natural father has not been obtained, and it is not even the petitioner's case that the petitioner's natural father has either finally renounced the world, or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. Reference was made to Section 9(2) of HAMA.

• Merely because the petitioner's father renounced or waived his rights, qua the petitioner, and also gave up his obligation to maintain the petitioner at that time, the same cannot be construed as a final renunciation of the world.

Judgment:

The Delhi High Court held that it is pertinent to note that both Section 5 & 6 of HAMA begin with the words “no adoption shall be made…..” and “no adoption shall be valid unless……”. It is, therefore clear that both these provisions are mandatory. The Court also mentioned that from a reading of Section 5, it is clear that an adoption not made in accordance with the provisions of Chapter II of the HAMA is void. The adoption is not valid unless the person giving in adoption has the capacity to do so and the adoption is made in compliance with the conditions mentioned in Chapter II of HAMA, which would include the conditions mentioned in the provisions of Section 9(2) of HAMA. The petition was dismissed leaving it open to the petitioner to comply with the objections raised by the RPO and to resubmit her application with the correct details, inter alia, with regard to her parentage. The parties were left to bear their respective costs.

Relevant Paragraphs:

23. An application for seeking issuance of a passport is required to be made under Section 5(1) and on receipt of an application, the passport authority is required to make his enquiry and thereafter pass an order. He may either decide to issue the passport in terms of clause (a) of Section 5(2), or to issue a passport with an endorsement, or refuse to make an endorsement in respect of some countries in terms of clause (b) of Section 5(2), or he may altogether refuse to issue a passport under clause (c) of Section 5(2). In case he passes an order under clause (b) and/or (c) of Section 5(2), he is required to record brief reasons therefor. Therefore, if the details and particulars mentioned in a passport application by an applicant are found to be incorrect or deficient upon a scrutiny of the application and the documents produced in support of it, the passport authority is not obliged to issue a passport, merely because such a case may not be covered by the ground contained in Section 6(1) or 6(2) of the Passports Act.

25.The Parliament deliberately used the words "Subject to the other provisions of this Act" in Section 6(1) and 6(2) of the Act, to take care of all such situations. In my view, what Section 6(1) and 6(2) of the Act provide is that if the application of the applicant is otherwise found to be complete and truthful in respect of the information required to be provided in the application for issuance of a passport or for seeking an endorsement thereon, the same may still be refused for the grounds mentioned in Section 6(1) and 6(2) respectively. Pertinently, the present cannot be even termed as a refusal to issue a passport to the petitioner altogether. All that the petitioner has been informed is to make correction in the information provided in the application form and to resubmit the same.

26. The fundamental right available under Article 21, which includes the right of locomotion and to travel abroad, is subject to reasonable restrictions. It cannot be said that a citizen has a right to obtain a passport by furnishing incorrect or wrong information with regard to his name, age, address or parentage. He cannot claim that non issuance of the passport with incorrect/false information is infringing his fundamental right of locomotion or to travel abroad. In my view, it cannot be said that the passport authority has no jurisdiction whatsoever to go into the issue of correctness or otherwise of the adoption deed, even in case where, on the face of it, the said adoption deed appears to be in contravention of the law. The enquiry that the passport authority is required to undertake under Section 5 of the Passport Act is a serious enquiry. Such an enquiry cannot be done cursorily or perfunctorily. If, during the course of the enquiry, it comes to the notice of the passport authority that the documents provided by the applicant did not support the claims made by the applicant in his application for issuance of a passport, he would not only be entitled, but would be duty bound to raise the issue with the applicant. A passport is not only a travel document, but is also an identity document. The identity of a person is determined, inter alia, by his parentage. Therefore, unless there is a legal adoption of the applicant, he/she is bound to give the name of his/her natural parents and cannot choose to provide the name of the adopted parent(s) in his/her application form.

Both parents of a child, if alive, have equal right to give the child in adoption. Therefore, the right of the petitioner's mother, Smt. Rajeshwari Chattoraj to give the petitioner in adoption cannot be questioned. However, the law is very clear that such right cannot be exercised by either of the parents of the child "save with the consent of the other, unless one of them has deliberately and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind." Consequently, the consent of the petitioner's natural father was required to give the petitioner in adoption to Surojit Chattoraj. However, such consent would not be necessary if the petitioner's natural father had, inter alia, "finally renounced the world".

32. In my view, on a plain grammatical and literal interpretation of the said words, it cannot be said that the petitioner's natural father Shri Abhijit Ghosh has renounced the world, as the renounciation of the world by a person would involve and entail his severing his relationships with all other human beings and would also entail the giving up of all material wealth and pleasures.

35. The petitioner's mother could not have secured the right, at the time of her obtaining divorce from Shri Abhijit Ghosh, to claim that the petitioner was not the naturally born child of her natural father, Shri Abhijit Ghosh. The petitioner's mother also could not have taken away the petitioner's right to claim that Shri Abhijit Ghosh is her natural father. The petitioner's right to claim her status as the daughter and an heir of Shri Abhijit Ghosh also could not have been taken away by her mother by entering into a compromise with her natural father. The rights which inhere in the petitioner on account of her being a natural heir of her natural father continue to survive. The identity of the petitioner is derived by the fact that the petitioner is the naturally born child of her parents i.e. Shri Abhijit Ghosh and Smt. Rajeshwari Ghosh, now known as Smt. Rajeshwari Chattoraj. The settlement arrived at between the petitioner's parents at the time when they obtained the divorce cannot be said to include an implied consent by the petitioner's father to the giving in adoption of the petitioner to any other person.