MANU/KA/0766/2023

Equivalent/Neutral Citation: 2023(5)KarLJ444, 2023/KHC /12969

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 21642 of 2022 (GM - PASS)
Decided On: 21.03.2023
Arya Selvakumar Priya and Ors. Vs. Joint Secretary (PSP) and Chief Passport Officer
Ministry of External Affairs and Ors.
Hon'ble Judges/Coram:
Maheshan Nagaprasanna, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Manu P. Kulkarni, Advocate
For Respondents/Defendant: M.N. Kumar, CGC
Case Note:
Constitution - Citizenship - Article 226 of Constitution of India - Appeal
against order declining to grant Indian passport to 1st petitioner - Whether
1st petitioner entitled to re-issuance of Indian passport? - Held, one of
solution to one of problem is to be rendered, such problems recurring will
generate apathy towards child - Therefore, it is for Authorities to bring about
necessary solution to redeem such unprecedented situations whenever they
would occur - 1st petitioner cannot but be held to be citizen of India having
taken birth in this land to parents who were citizens of India at time of birth
of son - Myriad circumstances prevailed leading to defenceless situation of
child - Biological father though is now separated from mother is still Indian,
notwithstanding fact that he is not traceable - Merely because father is
untraceable and mother was reckless in not knowing consequences of
renouncement of citizenship, fate of child cannot be left in limbo - Fit case to
exercise jurisdiction under Article 226 of Constitution to remedy wrong qua
1st petitioner, a wrong never committed by child - Appeal allowed in part -
Challenge to impugned order rejected - Respondents 1 and 2 directed to re-
issue passport that is issued to 1st petitioner to be operational till he attains
age of 18 years. [20], [21], [22]
ORDER
Maheshan Nagaprasanna, J.
1 . The petitioners are calling in question order dated 12-01-2022 passed by the 1st
respondent/Joint Secretary and Chief Passport Officer, Ministry of External Affairs
declining to grant an Indian passport to the 1st petitioner and have further sought
quashment of a Surrender Certificate dated 22-05-2015 issued by the 5th
respondent/Consulate General of India, Toronto and a consequential mandamus
directing the 2nd respondent/Regional Passport Officer, Bengaluru to issue a valid
Indian Passport to the 1st petitioner. In this order, for the sake of convenience 1st
petitioner will be referred to as the son; 2nd petitioner as mother/wife and Sri
Selvakumar Balasubramanian as the father/husband.

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 2 . Shorn of unnecessary details, facts germane for a consideration of the lis, are as
follows:-
The 2nd petitioner/wife gets married to one Sri Selvakumar
Balasubramanian/husband on 4-11-2005. Both the husband and wife were
Indian Citizens, residing in India. From the wedlock a son is born on 5-03-2008
in India-the 1st petitioner. It appears that the husband decides to relocate to
Canada owing to his avocation in the year 2011. The wife joined him at Canada
along with the son. In the year 2012 the father returns to Bangalore with the
son and hands over custody of the son to the parents of the wife i.e., the
maternal grandparents of the child. It is the averment in the petition that after
handing over the child to the grandparents, the husband lost complete touch
with the family and various modes of contacting the husband have failed and he
is inaccessible and untraceable even to this day. The mother continued to stay,
pursuing her studies, in Canada while the son continued to stay with the
grandparents in India.
3 . In the year 2015 precisely on 21-02-2015, on an application being made by the
mother before the authorities at Canada seeking citizenship of Canada she was granted
one on 21-02-2015 and in furtherance of grant of citizenship, a Canadian passport was
also issued in her favour on 07-04-2015. Therefore, the mother then becomes a citizen
of Canada. After grant of citizenship the mother files an application before the Consulate
General of Indian Embassy at Canada surrendering her citizenship of India and seeking
an Overseas Citizen of India card. Accepting the surrender application, the Government
of India, in the Ministry of External Affairs, issued citizenship surrender certificate to the
mother depicting that she has renounced Indian citizenship under the Citizenship Act,
1955 (hereinafter referred to as 'the Act' for short) and cancelled the passport. The
surrender certificate was issued on 22-05-2015.
4 . After issuance of surrender certificate, since the son was staying in India with the
grandparents and the father was also staying in India, the grandparents applied for
issuance of a minor passport to the son. An Indian passport comes to be issued to the
son on 24-07-2015 for a period of five years which was set to expire on 23-07-2020.
The mother then relocates, due to her avocation, to the United Kingdom and is now
residing in United Kingdom.
5 . On the ground that the husband had become untraceable for several years, wife
registers a proceeding before the Family Court at Bangalore under Section 13(1)(ia) &
(ib) of the Hindu Marriage Act for divorce/annulment of marriage that took place on 4-
11-2005 in M.C. No. 4807 of 2017. The concerned Court records that on failure of
efforts to get the respondent served including a paper publication, there was no warrant
to wait for representation of the respondent/husband and then passed an ex parte order
annulling the marriage on 04-09-2018 and since there was no contest in the matter, it
directed permanent custody of the child to the mother. This order has become final.
Therefore, the custody of the child goes to the mother legally.
6. The passport of the son issued on 24-07-2015 was set to expire on 23-07-2020, he
was then 12 years old. Owing to such date of expiry, the mother makes an application
before the Authorities seeking re-issuance of passport to the son. At the outset, the
signature of the father was sought and the mother explains that the father was
untraceable, and a decree of divorce is granted and the custody of the son was with the
mother. It is then, the Authorities insisted production of document of custody i.e., the
order of the Court and other details of the matter. The Authorities then realized that

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 though the custody has been granted to the mother, the mother has renounced
citizenship of India way back in the year 2015 and by operation of law the minor son
also ceases to be a citizen of India. On that basis re-issuance of Indian passport to the
son was declined. This led the mother filing an appeal before the Appellate
Authority/1st respondent. The Appellate Authority recording the fact that Passport Rules
require the parent in whose custody the minor child is, to be citizen of India for
issuance of passport to the minor, affirms the order of the Regional Passport Officer
who declined to re-issue passport in favour of the son. But, however, the Appellate
Authority on humanitarian grounds to unite with his mother grants a temporary passport
to the son to be effective from 21-03-2022 to expire on 20-03-2023. Before the expiry
date would arrive, the present petition is preferred on 28-10-2022 seeking the afore-
quoted prayers.
7 . Heard Sri Manu P.Kulkarni, learned counsel appearing for the petitioner and Sri
M.N.Kumar, learned Central Government Counsel appearing for the respondents.
8. The learned counsel appearing for the petitioner would contend that the son is born
in India from the wedlock of citizens of India, at the time when both the mother and
father were citizens of India. Therefore, in terms of Section 3 of the Citizenship Act,
1955 the son is a citizen of India by birth. The mother unknowingly or being ignorant of
consequences of law, sought renunciation of her Indian citizenship. What was required
to the mother was an Overseas Citizenship of India under Section 7A of the Act and not
renunciation. It is his submission that the mother was advised to renounce the
citizenship and, therefore, she submitted an application for surrendering citizenship.
Even otherwise, the learned counsel would contend that surrender of citizenship had
happened in the year 2015 and the custody of the son has come to the mother in the
year 2018. Therefore, renunciation should not come in the way of grant of passport to
the son, as otherwise, he would be rendered countryless or landless and will have no
legal identity. Though the passport is issued to the son, it is only a temporary which
would give no right of citizenship to the son. He would therefore, contend that passport
be directed to be issued in favour of the son. The learned counsel for the petitioners has
not advanced any contention towards the unconstitutionality of Section 8(2) of the Act.
9 . On the other hand, the learned counsel representing the respondents would
vehemently refute the submissions by taking this Court to the statement of objections to
contend that the mother consciously applied for renunciation of citizenship as could be
gathered from Annexure-11, the surrender application form, which clearly indicates the
reason for surrender, as acquiring foreign nationality and renunciation of Indian
citizenship. This was strictly in consonance with law. The citizenship surrender
certificate is also issued in tune with what the mother had sought on 22-05-2015. He
would submit that it is too late in the day for the mother to now turn around and
challenge the surrender certificate so issued to her. He would submit that in terms of
the Rules there cannot be any fault found with the order passed by the Authorities and
passport is given to the son on humanitarian grounds which would expire and if the
prayer is granted it would lead to a cascading effect and serious consequences. He
would put up vehement opposition for grant of any prayer that is sought in the petition.
10. I have given my anxious consideration to the submissions made by the respective
learned counsel and have perused the material on record, in furtherance whereof the
issue that falls for consideration is:
"Whether the son is entitled to the grant/re-issuance of an Indian passport?"

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 11. Before embarking upon consideration of the issue or the prayer of the petitioners
for grant/re-issuance of an Indian passport to the son, I deem it appropriate to notice
the legal frame work/the Citizenship Act, 1955, the Passport Act, 1967 and interplay
between the two.
Acquisition of Indian citizenship:
12. Acquisition of citizenship is dealt with in Sections 3 to 6. What is germane to be
noticed is Section 3 and it reads as follows:
"3. Citizenship by birth.-(1) Except as provided in sub-section (2), every
person born in India-
(a) on or after the 26th day of January, 1950, but before the 1st day of July,
1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the
Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of
India at the time of his birth;
(c) on or after the commencement of the Citizenship (Amendment)
Act, 2003, where-
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is
not an illegal migrant at the time of his birth,
shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time
of his birth-
(a) either his father or mother possesses such immunity from suits and
legal process as is accorded to an envoy of a foreign sovereign power
accredited to the President of India and he or she, as the case may be,
is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a
place then under occupation by the enemy."
(Emphasis supplied)
Section 3 provides acquisition of citizenship where both the parents are citizens of India
or one of whose parents is a citizen of India and the other is not an illegal migrant at
the time of his/her birth. Therefore, by operation of Section 3, a person born in India
on several circumstances is a citizen of India. Insofar as the present case is concerned,
the son is a citizen of India in terms of Section 3(1)(c) as both the parents, at the time
of his birth, were citizens of India and the son was born in India. Therefore, jus soli-by
birth the son becomes a citizen of India. This fact and the interpretation cannot be in
dispute.
Renunciation of citizenship:
13. Renunciation of citizenship under the Act is dealt with under Section 8 of the Act
and it reads as follows:

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 "8. Renunciation of citizenship.-(1) If any citizen of India of full age and
capacity, makes in the prescribed manner a declaration renouncing his Indian
Citizenship, the declaration shall be registered by the prescribed authority; and,
upon such registration, that person shall cease to be a citizen of India:
Provided that if any such declaration is made during any war in which India
may be engaged, registration thereof shall be withheld until the Central
Government otherwise directs.
(2) Where a person ceases to be a citizen of India under sub-section (1) every
minor child of that person shall thereupon cease to be a citizen of India:
Provided that any such child may, within one year after attaining full age, make
a declaration in the prescribed form and manner] that he wishes to resume
Indian Citizenship and shall thereupon again become a citizen of India."
Section 8 deals with renunciation of citizenship. The method of renunciation of
citizenship is depicted in terms of the Rules promulgated by Government of India in
exercise of its power under Section 18 of the Act. It is germane to notice Rule 23 and it
reads as follows:-
"23. Declaration of renunciation of citizenship.-(1) A declaration of
renunciation of citizenship of India under sub-section (1) of Section 8
shall be made by a citizen of India in Form XXII.
(2) On receipt of the declaration of renunciation of citizenship of India
under sub-rule (1), an acknowledgement in Form XXIII shall be issued
by the concerned Authority referred to in Rule 38, to the declarant.
(3) On being satisfied about the correctness of the particulars of the
declaration made under sub-rule (1), the declaration shall be
registered by the concerned Authority referred to in sub-rule (2) and a
Certificate of Renunciation of Indian citizenship in Form XXIV shall be
issued by him to the declarant.
(4) The concerned Authority referred to in sub-rule (2) shall maintain
a register in Form XXIV-A containing the details of declarants whose
declaration of renunciation of citizenship are registered under this
rule."
(Emphasis supplied)
In terms of Section 8, a citizen of full age and capacity may in the prescribed manner
declare renouncing his Indian citizenship and the declaration shall be registered by the
prescribed Authority and upon such registration the declarant will cease to be a citizen
of India. Sub-section (2) of Section 8 depicts that when a person ceases to be a citizen
of India under sub-section (1) which would mean who ever would renounce citizenship,
the minor child of that declarant who has renounced citizenship of India will thereupon
i.e., from the date of such renunciation ceases to be a citizen of India. The purport of
the Act is that if the mother or the father renounces citizenship of India, the minor
would cease to be a citizen of India. The proviso to sub-section (2) further permits that
the child who has lost citizenship of India, if on attaining the full age i.e., 18 years then
within one year thereafter can make a declaration that he wishes to resume Indian
citizenship. Rule 23 depicts the method of declaration of renunciation of citizenship.

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 There are three types-that declaration under sub-section (1) of Section 8 is to be made
in Form No. XXII, the said declaration is to be acknowledged by the prescribed
Authority in Form No. XXIII and on being satisfied with the declaration of the declarant
the certificate of renunciation of Indian citizenship in Form No. XXIV should be issued.
In the light of Rule 23 depicting three forms for renunciation to be completed, I deem it
appropriate to notice the very forms that are part of the Rules. They read as follows:
"FORM XXII
[See rule 23 (1)]
The Citizenship RULES, 2009
DECLARATION OF RENUNCIATION OF CITIZENSHIP UNDER SECTION 8 OF THE
ACT MADE BY A CITIZEN OF INDIA WHO IS ALSO A CITIZEN OR NATIONAL OF
ANOTHER COUNTRY

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 This Form when completed should be forwarded in triplicate to the Chief
Secretary to the Government of the State in which applicant is resident."
Therefore, form Nos. XXII, XXIII and XXIV are for different and specific purposes. This
is the legal frame work for renunciation of citizenship.
14. The issue in the lis is required to be considered on the bedrock of the aforesaid
legal frame work. Certain facts are not in dispute. The husband and the wife get married
in India on 4.11.2005. Both the husband and the wife were Indian citizens born in India
at the time of their marriage and were residing in India. From the wedlock, the son is
born on 05-03-2008 in India to the parents who were Indian citizens. Therefore, by
operation of Section 3, the son becomes a citizen of India by birth having born to
Indian citizens. In 2011 the husband relocates to Canada. The wife follows him along
with the son. In 2012 the husband comes back to India along with the son and hands
over the child to the maternal grandparents of the child i.e., the parents of the wife and
appears to have disappeared and the averment is, the father is not traceable even to
this day.
1 5 . The mother who pursued her higher education in Canada applies for Canadian
citizenship and was granted such citizenship on 21-02-2015. On such grant of Canadian
citizenship, she was granted a Canadian passport on 07-04-2015. Therefore, from 07-
04-2015 she becomes a full blown citizen of Canada. Since the Act does not permit dual
citizenship, the mother submits an application form for surrender/renunciation of Indian
citizenship. The surrender application form is appended to the statement of objections.
The reason for surrender as depicted in the application by the mother is as follows:
"Reason for Acquiring Foreign Nationality/ Surrender: Renunciation of Indian
Citizenship."
The reason is acquiring foreign nationality/renunciation of Indian citizenship. Upon this
the Ministry of External Affairs, accepting the application of the mother and on
verification of documents issues a citizenship surrender certificate on 22-05-2015. The
surrender certificate reads as follows:
"CAN/SC/03086615
Date: 22-MAY-2015

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 CITIZENSHIP SURRENDER CERTIFICATE
Consequent upon renunciation of Indian citizenship under Section 8 of
the Citizenship Act, 1955 and acquiring of Canadian citizenship by Mrs.
PRIYA SELVAKUMAR on 21.02.2015 her Indian passport No. H7541155
issued on 18-SEP-2009 at Bangalore has been cancelled and returned
to the holder. Fee has been charged vide receipt No. CANT03086615
dated 11-MAY-2015."
(Emphasis added)
Thereafter, it is the claim of the respondent/Ministry of External Affairs that it has been
registered that the mother has renounced Indian citizenship and is no longer a citizen of
this country.
1 6 . Later, the grandparents of the son in whose custody the son was throughout,
applied for an Indian passport and the son was issued a minor passport on 24-07-2015
for a period of 5 years. The passport was set to expire on 23-07-2020. During the said
period, the mother institutes proceedings seeking annulment of marriage before the
Family Court at Bangalore. The family Court in terms of its order dated 04-09-2018
recording the fact that the husband did not appear before the Court despite paper
publication grants a decree of divorce as was sought by the wife and since there was no
contest, the custody of the son was ordered to be permanently with the mother. The
order reads as follows:
"Petition filed by the petitioner/wife under Section 13(1)(ia) and (ib) of the
Hindu Marriage Act is hereby allowed.
The marriage solemnized between petitioner and the respondent on 4-
11-2005 at SNR Kalyana Mantapa, Kolar Main Road, Bangarpet, Kolar
District is hereby dissolved by granting decree of divorce and
registered in No. BPT-HM 112-2009-10 dated August 27, 2009 in the
office of the Registrar of Marriages, Bangarpet is hereby cancelled.
The petitioner is appointed as a permanent guardian of the child born
to the petitioner and the respondent on 05-03-2008 at St. Martha's
Hospital, Bengaluru and she is entitled for the permanent custody of
the child by name Master Arya Priya Selvakumar."
(Emphasis added)
After the grant of divorce and permanent custody of the son, the mother applies for re-
issuance of Indian passport to the son. It is then the Authorities seek the signature of
the father only to be told that there is a decree of divorce and permanent custody is
with the mother; the Authorities then seek decree of the Court and documents of the
mother. Thereafter, the Authorities get to know that the mother has renounced
citizenship of India and on such renouncement it was opined that the son cannot be re-
issued the Indian passport, as the Passport Rules would indicate that passport to a
minor can be issued only when the parent to whose custody the child has been granted,
is on the date of consideration of the application for re-issuance of passport of the
minor, an Indian citizen. Therefore, taking note of the documents of the mother, the
passport of the son is declined to be re-issued. The legal guardian and the mother then
filed an appeal before the Appellate Authority/1st respondent, who by the impugned
order dated 12-01-2022 affirms the order passed by the Regional Passport Officer. The
order reads as follows:

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 "12. And now, therefore, having gone through all the records and in the light of
the full facts and circumstances of the case, I, as the Appellate Authority, as per
the provisions u/s 11 of the Passports Act, 1967, decide the appeal as under:
(i) As per section 5(2)(c) of the Passports Act, 1967, on receipt of an
application, the passport authority, after making such inquiry, if any as
it may consider necessary, shall subject to the other provisions of this
Act, by order in writing:
(c) refuse to issue the passport or travel document or, as the
case may be, refuse to make on the passport or travel
document any endorsement.
(ii) As per section 6(2)(a) of the Passports Act, 1967, 'subject to the
other provision of this Act, the passport authority shall refuse to issue a
passport or travel document for visiting any foreign country under
clause (c) of sub-section (2) of Section 5 on any one or more of the
following grounds, and no other ground, namely:
(a) That the applicant is not a citizen of India;
(iii) As per Section 8 of Passports Act, 1955, (1) When a citizen of
India of full age and capacity, declares in a prescribed manner
furnishes a declaration renouncing his Indian citizenship, the
declaration shall be registered by the prescribed authority and, upon
such registration, that person shall cease to be a citizen of India;
(2) When a person ceases to be a citizen of India under sub-
section (1), every minor child of that person shall thereupon
cease to be a citizen of India.
(iv) the applicant's mother had acquired Canadian nationality and
formally renounced her citizenship u/s 8(1) of C.A. 1955.
(v) The legal custody of child has been granted to the mother, vide
Court order dated 4-09-2018, by Family Court, Bangalore in petition
M.C. No. 4807 of 2017.
(vi) As per extant rules, in cases where one parent has renounced the
Indian citizenship and the other parent is still an Indian citizen, the
citizenship of the minor shall be of that person who has legal custody
of that minor child and the eligibility of an Indian passport will be
determined on the basis of his/her citizenship.
(vii) Therefore, the child is not eligible for Indian passport. The action
of PO in refusing the applicant's passport application No.
BN2073143318320 dated 10-12-2020 u/s 6(2)(a) read with Section
5(2)(c) of the Passports act, 1967 was in order.
(viii) However, on the request of child's mother, he may be issued a
short validity passport on humanitarian grounds, so as to enable him to
travel abroad to reunite with his mother."
What could be gathered from the order is that once the citizenship is renounced under
Section 8 of the Act, the passport cannot be issued to the child as the applicant i.e., the

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 mother is no longer a citizen of India on her acquiring Canadian nationality and formally
renouncing her Indian citizenship. As per the Passport Rules, in case where one parent
has renounced Indian citizenship and the other parent is still an Indian citizen, the
citizenship of a minor shall be of that person who has legal custody of the minor child.
The legal custody of the minor child is with the mother and the mother is now a citizen
of Canada. By operation of law the child also has lost his Indian citizenship and can be
regained only after he attains full age i.e.,18 years. The Appellate Authority however
grants a short validity passport on humanitarian grounds to enable the child to travel
abroad and re-unite with his mother. The kindness displayed by the Appellate Authority
is appreciable. The mother is now working in United Kingdom and the boy has joined
the mother in the United Kingdom on the strength of the passport. The passport so
granted has also expired on 20-03-2023. Insofar as the challenge to the validity of
Section 8(2) of the Act is concerned, the petitioners have not advanced any contention
in support of the prayer that is sought. Even otherwise, merely because it has created
prejudice to the mother, the provision of law cannot be held to be unconstitutional on
the ground that it is arbitrary. The said prayer deserves to be rejected, as the
foundation is fundamentally flawed.
17. On a coalesce of all the aforesaid facts and the legal frame work, the result is that
the child has lost his Indian citizenship and cannot become a citizen of any other
country in terms of their laws and for regaining Indian citizenship he has to come of full
age, in terms of the proviso to sub-section (2) of Section 8 of the Act. That stage has
not yet arrived as the child is now 15 years old. Three years have to pass by for the son
to exercise his discretion either to become a citizen of any other country or to regain
Indian citizenship, but till then he is rendered Stateless.
Statelessness:
18. A Stateless child is an individual who does not hold the citizenship of any State.
Stateless children are among the most vulnerable individuals in the world, as being
stateless implies several consequences. They would not have any rights, legal
protection, benefits of education, healthcare, freedom of movement inter alia and
Statelessness has a lifelong impact on a child who is rendered one. India is a signatory
to the Universal Declaration of Human Rights, 1948. Article 15 of the said treaty
expressly provides that everyone has a right to one nationality. International Convention
on the rights of a child, as well as the Convention on reduction of Statelessness provide
particular norms with respect to right to nationality for children. In theory, basic human
rights should be available to everyone and everywhere. All states reserve certain rights
for their citizens, a Stateless child does not get any entitlement for those rights which
have been conferred upon citizens by particular countries. A child is a soul with a being
and a being who is entitled to all human rights. Merely because a minor/child has no
voice in the affairs of the state qua citizenship or otherwise, the Courts exercising
jurisdiction under Article 226 of the Constitution of India, both for justice and equity,
cannot shut its doors to the cry of a child, who would be rendered Stateless without the
aid of interference at the hands of this Court. It is in public domain that it is the
endeavour of the comity of nations to eradicate Statelessness of children in particular,
as LAW ABHORS STATELESSNESS OF CHILDREN. If law is abhorrent to Statelessness of
a child, the situation in the case at hand has to be redeemed, failing which, it would
result in the Statelessness of the son.
19. On the bedrock of the aforesaid mandate of Human Rights and rights of a child qua
the Conventions, the relief that is to be granted to the son is required to be considered.
It is not in dispute that the child is born in India, to Indian citizens at the time of birth,

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 which was in the year 2008. Both the parents relocate to Canada. The child has
intermittently stayed in Canada and then in India with the grandparents. After staying
for one year in Canada, the father comes back to India with the son, leaves him with the
maternal grandparents and abandons the son. The mother continues to stay in Canada
and also acquires citizenship of Canada and later, renounces the citizenship of India.
The son then is issued a minor passport in the year 2015. The family Court grants a
divorce to the couple and orders permanent custody of the son to be with the mother.
This happens long after the mother had renounced the citizenship of this nation. Neither
the father nor the mother thought of the child at that point in time i.e., at the time when
the mother renounced her Indian citizenship. The passport issued to the son expires in
2020. It is then the mother wakes up and tries to retrace her steps with regard to
renouncement of citizenship and the surrender certificate that was given by her in
Canada in the year 2015. The parents forgot the child in the jugglery of settling their
scores. The cry of such a child cannot be ignored by this Court. The obligation of the
International Conventions qua child rights to which India is a signatory is that "no child
should be left Stateless". Therefore in the aforesaid facts, leaving open to the Ministry
of Home Affairs to put up all its defence in any given case, I deem it appropriate to
direct the respondents 1 and 2 to issue a passport to the 1st petitioner for the period
between today and his attaining the age of 18 years, failing which, he would be
rendered Stateless.
20. Perhaps, the law makers would not have envisaged a situation of this kind that is
brought before the Court for them to think of a solution in its Rules, guidelines or
procedures stipulated under the Circulars, be it under the Act or the Passports Act.
Though, in the considered view of this Court, a one of solution to a one of problem is to
be rendered, such problems recurring will generate apathy towards a child. Therefore, it
is for the Authorities to bring about necessary solution to redeem such unprecedented
situations whenever they would occur.
21. The son cannot but be held to be a citizen of India having taken birth in this land to
the parents who were citizens of India at the time of birth of the son. Myriad
circumstances prevailed leading to the defenceless situation of the child. The biological
father though is now separated from the mother is still an Indian, notwithstanding the
fact that he is not traceable. Merely because the father is not traceable and the mother
has been reckless in not knowing the consequences of renouncement of citizenship, the
fate of the child cannot be left in limbo. It becomes a fit case where this Court has to
exercise its jurisdiction under Article 226 of the Constitution of India to remedy the
wrong qua the son of the 2nd petitioner, a wrong never committed by the child as "IF
NOT THE COURTS WHO and IF NOT NOW, WHEN".
22. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The challenge to the Constitutional validity of Section 8(2) of the
Citizenship Act, 1955 or the prayer to read it down stands rejected.
(iii) The challenge to the impugned order dated 12-01-2022 is rejected.
(iv) The challenge to the Surrender Certificate dated 22-05-2015 is rejected.
(v) Mandamus issues to the respondents 1 and 2 to issue/extend/re-issue the

18-03-2024 (Page 11 of 12) www.manupatra.com Librarian Tada Law Faculty, University of Delhi
 passport that is issued to the son/1st petitioner to be operational till the son
attains the age of 18 years bearing in mind and adhering to the observations
made in the course of the order, as the son cannot be rendered a Stateless
child.
(vi) Liberty is reserved to the son/1st petitioner to resume Indian Citizenship
once he comes of full age in terms of proviso to 8(2) of the Act.
(vii) The respondents 1 and 2 shall issue/extend/re-issue the passport in favour
of the son/1st petitioner forthwith, till the time of such issuance, the existing
passport shall stand extended and no coercive or precipitative action shall be
taken against the son/ 1st petitioner.
Pending applications if any, also stand disposed, as a consequence.
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18-03-2024 (Page 12 of 12) www.manupatra.com Librarian Tada Law Faculty, University of Delhi