The Kerala High Court declared that in any event, when one parent of a minor born in India is not an Indian Citizen, the child is eligible to be given an Indian Passport.
Justice Bechu Kurian Thomas held that a minor who has obtained citizenship by birth according to Section 3 of the Citizenship Act, 1955 can’t be viewed as a stateless kid by reason of her mom being an American citizen.
“Law abhors such statelessness of children. The comity of nations ensures that every person must have a nationality so that all rights accrue to that individual as a national of that particular country. Though nationality and citizenship are not synonymous terms, the concept of nationality cannot be ignored while considering the citizenship of a minor child, especially when the statute confers citizenship by birth,” the Court said in its judgment.
Simply in light of the fact that one parent procured the citizenship of another nation or then again on the off chance that one parent isn’t a citizen of India, will not without help from anyone else, disentitle a kid born in India and whose other parent is an Indian citizen to be given with an Indian passport, the Court said
Only on the grounds that one parent isn’t a citizen of India doesn’t disentitle a kid born in India from getting an Indian passport. The Court additionally noticed that the right to nationality of each individual is safeguarded under the Universal Declaration of Human Rights and the Convention on the Rights of the Child.
The Court said, “The right of every child to acquire a nationality is guaranteed under Article 7 of the Convention, which obliges every party State to implement this right and under Article 8 to protect and preserve the nationality of every child. India, as a party State to the Convention on the Rights of the Child, (by virtue of its ratification in December 1992) has an obligation that no child is left stateless”.
Three fundamental issues were considered by the Court and replied as follows:
(I) Whether the consent of both parents is required to give a passport to a minor youngster?
However earlier, there was ambiguity and confusion in regards to the strategy to be adopted when consent of both parents could not be obtained, by virtue of several precedents, it has been given that, if an affidavit is filed as Annexure-C of Schedule III of the Passport Rules, 1980, the passport giving authority can give a passport to a minor kid, without demanding the consent of both parents.
Regardless of whether one of the guardians of a minor kid will not give consent, the passport giving authority is qualified to issue a passport to a minor, given Annexure-C is submitted.
(ii) Whether the minor kid is disentitled to get an Indian passport, assuming one of the parents is a citizen of another country?
Section 3(1)(c)(ii) of the Citizenship Act uncovers that an individual born in India turns into a citizen of India by birth, regardless of whether only one of his parents is an Indian citizen, gave other conditions mentioned in the sub-section are not applicable.
The petitioner was born in India and her father was a citizen of India not only at the time of birth of the petitioner but is one, even at present. Petitioner has also not terminated her citizenship under section 9 of the Citizenship Act, the Court said.
Being born in India, the petitioner’s domicile of origin is India. The domicile of origin is a concept of law and clings to a person until he abandons it by acquiring a new domicile of choice as held by the Kerala High Court in Govindan v Bharathi and Sindhu George v Passport Officer, Ekm. and Anr.
In such conditions, the petitioner is qualified to be treated as an Indian citizen.
(iii) Whether the passport can be given referencing just the name of the legal guardian?
However the biological father has been given visitorial privileges, that right is at the convenience of the parties and the father submitted in Court that he has no issue with the kid being taken abroad by the mother, and to live there. The parties couldn’t bring to the notification of this Court any legal prohibition in incorporating the name of a non-citizen as the legal guardian in the passport of a minor child.
In this manner, the Court held that the petitioner is eligible to be given an Indian passport with the name of her mom supported as a mother as well as even as the legal guardian in the passport to be given.
The Court likewise had a couple of expressions of applause for the father of the petitioner for his readiness to send his kid to another country to live with her mom in her best wellbeing.
“The aforementioned willingness expressed by the father of the petitioner is indeed creditworthy, indicative of the parent acting in the interests of the welfare of the child and worthy of emulation by other similar parents”, the Court said.