Passports Act — Refusal to issue fresh passport on ground that divorce deed was not registered or authenticated by Court — Improper — Passport Act, 1967 S. 5.

[Sonalben Keyurbhai Patel v. Superintendent, Regional
Passport Office & Anr., AIR 2010 Gujarat 136]

The petitioner belongs to a village Valasan, District Anand.
The petitioner got married with one N. M. Patel according to Hindu rites and
customs at her village. The petitioner stayed with her husband at Nairobi. Due
to matrimonial dispute, the petitioner and her husband separated and divorce
deed was executed on 28-2-2001 in presence of relatives and witnesses.
Thereafter the petitioner married one K. B. Patel according to Hindu rites and
customs. This marriage was registered with the Registrar of Marriage at Anand.
The petitioner had two children and their birth was also registered. The
petitioner had applied for passport as her earlier passport had expired. The
petitioner had approached the Passport Office and had explained that in Patel
community of Anand District, customary divorce was permissible and therefore
not registered. The petitioner had also explained to the Passport Office that
u/s.29(2) of the Hindu Marriage Act, no divorce deed is required if customary
divorce was permissible. However the Passport Officer refused to issue
passport to the petitioner.

On a writ petition filed by the petitioner against the
Passport Authority, the Court held that the petitioner separated from her
first husband way back on 20-2-2001 and the deed of divorce was executed on
that day in presence of two witnesses. The facts regarding the divorce and
second marriage are not in dispute and more than nine years have passed. For
the purpose of issuance of fresh passport with change in the husband name, the
petitioner has already furnished the divorce deed and also an affidavit is
filed to that effect. It was true that the divorce deed was neither notarized
nor registered nor the petitioner has obtained decree of divorce from the
competent Court. However, divorce by custom was permissible. It was held in
the case of Twinkle Rameshkumar Dhameliya v. Superintendent, (AIR 2005
Guj. 267) that the stand taken by the Passport Authority insisting for divorce
deed duly registered before Sub-Registrar or authenticated by the Court cannot
be sustained since customary divorce can be said to be permissible, unless it
is objected to by either party to the divorce deed or any person who is
directly affected by the divorce deed. In the present case, in view of the
fact that more than nine years have passed since second marriage and the
petitioner has two issues from the second marriage, the affidavit of the
petitioner has already been filed and divorce deed has not been disputed by
anyone till date. The petitioner also belongs to Patidar community and
customary divorce is permissible in that community.

The Court directed that the Passport Authority should act
on the basis of the divorce deed and the petitioner can get it certified by
the Public Notary on the basis of original divorce deed and such certified
copy can be placed before the Passport Authority.