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IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
Shabnam - Appellant
Versus
Union of India - Respondent
W.P.(C) 16212 of 2022 and W.P.(C) 16339 of 2022
Decided On : 22-12-2022
JUDGMENT
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
W.P.(C) 16212/2022
2. The Petitioner-Shabnam who is the wife of a Nigerian national Mr. Desmond Okechukwu Uzozie, has filed the present writ petition seeking the issuance of a passport for her minor child who was born on 25th June, 2021.
3. It is not disputed that the child was born in India.
4. When the Petitioner applied for the Indian passport of her minor child, on 28th October 2021, an interview appointment was given to the Petitioner for the same day. The Petitioner claims that after attending the said interview at the Passport Seva Kendra, Herald House, New Delhi, all formalities regarding the issuance of a Passport to the Petitioner's son were completed. However, to date, the passport application of the Petitioner's son has not been granted. Further, it is claimed that as per the passport office website, the said application is still under review at the Regional Passport Office. Thus, the Petitioner has preferred this writ petition.
5. A status report was called from the Regional Passport Office (RPO). The said status report has been filed in compliance with the order dated 24th November, 2022. The status report filed by the RPO confirms that the child was born in Bihar on 25th June, 2021. The certificate of birth has also been submitted to the passport office. The stand of the RPO is that under Section 3(1)(c)(ii) of the Citizenship Act, 1955, a child who takes birth in India after 2003 would be entitled for citizenship by birth, subject to the either of the two conditions i.e.,
6. It has been highlighted by the ld. Counsel for the Respondents that if the foreign national parent is an illegal migrant at the time of the birth of the child, citizenship would not be granted to the child born in India.
7. Citing this provision, it is the stand of the Respondents that when the child was born, the child's father was an illegal migrant who had been issued an exit permit to leave India. The Respondents further submit that the child's father was guilty of overstaying in India, violating the Visa conditions for a period of five years.
8. A letter dated 25th November, 2022 has also been annexed with the status report which is capturing the position of the RPO. The said letter reads as:
"This is in reference to passport application vide file number DL1065768865621 dated 28.10.2021 in respect of Master' Marvin Ugochukwu Uzozie' for which you have furnished copy of passport of the parents of the applicant.
2. Upon receipt of the said application, it is found that the father of the applicant is a Nigerian national. The matter was examined and it has been brought into the notice of this office that father of the applicant was not present in India at the time of birth of the applicant.
3. In view of the above, you are requested to kindly produce any documents to proof that father of the applicant was legal migrant at the time of birth of the applicant. You may furnish visa pages of passport booklet of the father of the applicant, depicting travel details at the time of applicant birth.
4. You may visit this office on any working days to furnish above said documents so that further necessary action could be taken on issuance of passport."
9. Mr. Ayyubi, ld. Counsel for the Petitioner submits that, an exit permit dated 27th March, 2021 was issued by the Foreigners Regional Registration Office (FRRO) to the Petitioner's husband permitting him to exit India on or before 2nd May, 2021 and an overstay penalty of Rs.20,000/- was also imposed. After that, the Petitioner's husband admittedly exited India on 6th April, 2021. Thus, when the child was born on 25th June, 2021, the child's father, i.e. the Petitioners husband, cannot be treated as an illega
A child born in India to a foreign national parent is entitled to citizenship despite the parent's overstay if the parent had exited legally before the birth.
None of the parties could bring to the notice 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.
A minor's citizenship by birth is not affected by a parent's foreign nationality, ensuring the child's right to an Indian passport.
Citizenship by birth under Section 3(1)(a) of the Citizenship Act entitles individuals to a passport, irrespective of parental nationality.
A Stateless child is an individual who does not hold citizenship of any State.
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