IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 26.03.2014 CORAM THE HONOURABLE MR.JUSTICE T.RAJ.Writ Petition No.34050 of 2013 and M.P.Nos.1 and 2 of 2013 1.Tarun Karthik 2.Mrs.Yamini Deenadayalan ...Petitioners Versus 1.The Regional Passport Officer, Ministry of External AffaiRs.Royala ToweRs.Anna Salai, Chennai-600 002, Tamil Nadu.
2.The Regional Passport Officer, Ministry of External AffaiRs.Kumaraguda, Secunderabad, Pin:500 003, Andhra Pradesh.
3.Mr.A.R.Karthik ..Respondents Prayer: This petition has been filed seeking for a Writ of Certiorarified Mandamus to call for the records of the impugned orders passed by the respondents in file No.13000004 CPC MAS dated 09.07.2013 and HYD/RTI/551/431/2013 dated 22.11.2013 and also direct the 2nd Respondent to call for the passport of the 1st petitioner (minor) issued from the 2nd Respondent office to the 3rd Respondent vide K-0663817 dated 29.11.2011 in the file No.Hyd 100311011 and quash the same and to direct the 1st Respondent to Re-issue a fresh Passport to the 1st petitioner(minor).who is in actual custody of the petitioner, the mother and natural guardian as per the orders of this Court in W.P.No.28245 of 2011 dated 11.01.2013 considering the petitioner in the capacity as a single parent.
For Petitioners : Mr.K.Nagarajan For Respondents : Dr.S.Padma (R3) Ms.M.Nirmala (R1 and R2) ACGSC ORDER
This Writ Petition has been filed by two petitioners who are the minor son and wife of the third respondent seeking for a issuance of Writ of Certiorarified Mandamus to call for the records of the impugned order passed by the respondents in File No.13000004 CPC MAS dated 09.07.2013 and HYD/RTI/551/ 431/2013 dated 22.11.2013 and for a further direction to the second respondent to call for the passport of the fiRs.petitioner (minor) issued from the 2nd respondent office to the 3rd respondent vide K-0663817 dated 29.11.2011 in the file No.Hyd 100311011 and quash the same, and to direct the 1st Respondent to Re-issue a fresh Passport to the 1st petitioner(minor).who is in actual custody of the petitioner, the mother and natural guardian as per the orders of this Court in W.P.No.28245 of 2011 dated 11.01.2013 considering the petitioner in the capacity as a single parent.
2.
The learned counsel for the petitioners would submit that the marriage between the second petitioner and the third respondent got solemnized on 08.05.2009 at Ms.Mahal, Purasaiwakkam, Chennai and out of the wedlock a male child was born to them on 30.07.2010 at Chennai.
He has further submitted that the second petitioner who was a physiotherapist studied in Chennai and obtained Master's degree at Australia and thereafter she was practicing there from 2002 and she had also obtained citizenship in Australia during 2008.
The third respondent, who is the husband of the fiRs.petitioner was aware of all these facts.
While so, the second petitioner was permitted by the third respondent to go to Australia from Hyderabad on two occasions to finish her work related pending contracts during September 2010 and in December 2010.
Although the relationship between the second petitioner and the third respondent was cordial only her in-laws, sister-in-law and other two of his relatives inflicted mental torture and financial pressure upon the petitioner even from the very fiRs.day of her entry into the matrimonial home, i.e.from 11.05.2009.
However, the second petitioner returned to Chennai with the permission of the third respondent from Hyderabad after her ".Seemantham".
for her delivery on 30.04.2010 along with her parents.
The above relations of her husband restricted the third respondent not to visit the petitioner at Chennai, though the petitioner was regular in visiting her and the new born child till 02.01.2011.
The frustration and missing of her husband compelled the petitioner to lodge a complaint before the W-13, All Women's Police Station, Tondiarpet, Chennai, on 15.04.2011, against her in-laws, sister-in-law and two of his relatives.
However, counseling was done on 06.05.2011 in the police station, during the couRs.of counseling the third respondent agreed to process the application of the fiRs.petitioner's Passport at Hyderabad and further undertook to take the mother and child to Hyderabad.
In view of that, the second petitioner sent the minor's passport application through speed post on 04.06.2011 to Hyderabad.
Suddenly, the third respondent and his relatives moved for anticipatory bail before this Court and this Court has ordered for Mediation and at the time of Mediation on 18.09.2011, the petitioner withdrew her complaint filed before the police station on the request made by her husband for re union, without prejudice to her family life and for the future of her child.
But, he did not keep up his promise.
3.
It is further submitted that the third respondent disconnected the family life with the second petitioner and even without seeing her child from 02.01.2012 onwards and even no communication was received from him and there was no phone calls from him and all the letters sent to him were returned as ".LEFT".
In view of that the second petitioner filed a petition for Restitution of Conjugal rights before the II Additional Family Court on 16.06.2011 and the same was ordered in favour of the second petitioner on 11.06.2012 as the third respondent remained exparte.
The second petitioner also came to know that the third respondent has filed set aside petition on 06.08.2012, for which the second petitioner again filed an application in I.A.No.110 of 2011, directing the third respondent to sign in the passport and visa applications of the minor and the same was also ordered in favour of the petitioner on 17.02.2012.
In the said order, the learned Additional Family Court has directed the child must be with the mother and that the order was passed considering the welfare of the child.
When the learned II Additional Family Court has already passed an order directing the third respondent to sign the passport and visa papers of the child within one month and as against the order passed by the learned II Additional Family Court, Chennai, the third respondent has received the passport of the fiRs.petitioner.
The said fact was not even informed to the petitioner till date.
Therefore, the petitioner came to this Court by filing the Writ Petition in W.P.No.28245 of 2011, before this Court against the fiRs.respondent to issue the passport of the child as her husband is not co-operating with her for getting the passport of the minor child and that the petition for Restitution of Conjugal rights is also pending, considering the second petitioner as a single parent.
The Writ petition was ordered in favour of the petitioner on 11.01.2013.
Only thereafter, the second petitioner came to know on 16.04.2013, that the passport of the fiRs.petitioner was issued from the Hyderabad office and it is being received and kept in custody of the third respondent.
Therefore, the petitioner has come to this Court.
The third respondent was aware that there are two orders passed by the learned II Additional Family Court, in I.A.No.110 of 2011 in O.P.No.3006 of 2011 stating that the child must be with the mother and the third respondent was further directed to sign the passport and visa papers of the child, within one month followed by one another order passed by the II Additional Family Court, in O.P.No.3006 of 2011 dated 11.06.2012, granting the decree for restitution of conjugal rights.
In the order passed in W.P.No.28245 of 2011 dated 11.01.2013, also there was a specific direction to the respondent, the regional passport office, Chennai to issue passport to the second petitioner, the mother of the fiRs.petitioner at the earliest.
In such circumstances, the passport should not have been issued by the second respondent to the third respondent.
Therefore he prays that the impugned orders to be set aside.
4.
Learned counsel for the third respondent strongly objecting the prayer, submitted that the present Writ petition is misconceived for two reasons.
Firstly, when the passport has been issued as per the procedure by the second respondent in the name of the fiRs.petitioner and the same was also granted to the third respondent who is the father and Natural guardian of the fiRs.petitioner, without any irregularity, the same cannot be quashed.
Moreover, the second petitioner who is the mother of the minor son, the fiRs.petitioner is admittedly a Australian Citizen and she was well aware of the issuance of the passport by the second respondent.
After knowing the fact that passport has been numbered by the third respondent, deliberately suppressing these facts, the Writ Petition in W.P.No.28245 of 2011 has been filed and without impleading the third respondent an order has been obtained on the ground that the second respondent is a single parent.
When till date there is no order of divorce passed against him or in favour of the second petitioner, it is not legally permissible for the second petitioner to claim that she is a single parent.
Admittedly, the stand before this Court in W.P.No.28245 of 2011 that she was a single parent was self conceived.
Further the second petitioner had filed O.P.No.3006 of 2011 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, before the learned II Additional Family Court and had obtained an order dated 11.06.2012 directing the third respondent herein, the husband to restore comforts by living with the second petitioner which is absolutely impossible.
However, the second petitioner claims herself to be a single parent.
Further, the second petitioner lying behind the back of the third respondent knowing fully well that the third respondent is a legally wedded husband of the second petitioner, deliberately mislead the court and suppressing the said fact had willfully filed the writ petition without impleading the third respondent, who is the husband of the second petitioner and had wrongly obtained an order dated 11.01.2013 with a direction to issue the passport to the second petitioner.
Even as per the complaint made by the second petitioner in the present Writ Petition, she was well aware of the issuance of the Passport and hence, the writ petition filed by her was not maintainable.
Therefore, in view of the above, the third respondent has been compelled to challenge the correctness of the impugned order by bringing to the notice of this Court that the approach adopted by the second petitioner, was unfair and unjustified, besides, the self contradictory stand taken clearly exposes the unclean hands adopted by the second petitioner by filing the writ petition one after the other and when there is a specific categorical order passed by the learned II Additional Family Court, in O.P.No.3006 of 2011 allowing her application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, the petitioner cannot say that she is a single parent and cannot move the application under the capacity as a single parent.
Therefore the present writ petition is liable to be dismissed.
5.
This Court is able to see full force and merits in the submissions made by the learned counsel for the third respondent.
When the second petitioner had filed O.P.No.3006 of 2011 under Section 9 of the Hindu Marriage Act 1955, against the third respondent seeking a prayer for restitution of conjugal rights, this Court by an order dated 11.06.2012 had allowed the said O.P.Ex parte directing the third respondent husband to take the second petitioner and live with her by restoring all comforts, while so, this Court is not able to see how the petitioner could move the W.P.No.28245 of 2011, without even impleading the third respondent for getting passport in favour of the fiRs.petitioner who was born to the second petitioner and third respondent.
Moreover, the order clearly shows that the second petitioner had moved this Court under Article 226 of the Constitution of India by filing the Writ Petition in W.P.No.28245 of 2011 in the capacity as a single parent.
Further, it is not in dispute that, at the time of Registration of Marriage in the Registrar Office, 2nd petitioner was an Australian citizen with Passport No.79559525.
However, when the 1st petitioner was born after the marriage, the 2nd petitioner applied for a passpost under Tatkal Scheme on 24.02.2011, to take the minor son to Australia.
But the 1st respondent refused to grant the passport on the sole reason that the 2nd petitioner is not an Indian Citizen.
Again, concealing this fact, she made another application for passsport of 1st petitioner with change of details, as though the 2nd respondent has consented for giving passport to the fiRs.petitioner.
However, once again, the fiRs.respondent has rejected the same on the second time as well.
Since her repeated efforts to get passport some how or the other got failed, she filed a police complaint against her husband and her in-laws, threatening for initiating criminal action in order to get signature in the passport application.
Once again, since the 2nd petitioner has filed petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, she cannot be allowed to say that she is a single parent, which she designed to evoke the sympathy of the Court.
From the above said facts, it is clear that the 2nd petitioner has approached this Court with unclean hands.
The conduct of the petitioner clearly shows that the second petitioner had made a deliberate and willful attempt to steal an order behind the back of the third respondent.
Therefore, this court finds that the second petitioner has approached this Court with unclean hands for a prayer over which the second petitioner has already taken an order from this Court.
Admittedly, the petitioner also in her affidavit filed in support of the writ petition has admitted that the passport has been issued to the third respondent before filing of the writ petition.
In view of the above stated two reasons, this Court is not inclined to extend the equity jurisdiction in favour of the second petitioner who has come to this Court with unclean hands.
Hence, this Writ Petition stands dismissed with cost of Rs.5000/- payable by the second petitioner to the third respondent.
The writ petition stands dismissed.
No costs.
Consequently, connected miscellaneous petitions are closed.
Index:Yes/No 26.03.2014 Internet:Yes/No arr To 1.The Regional Passport Officer, Ministry of External AffaiRs.Royala ToweRs.Anna Salai, Chennai-600 002, Tamil Nadu.
2.The Regional Passport Officer, Ministry of External AffaiRs.Kumaraguda, Secunderabad, Pin:500 003, Andhra Pradesh.
T.RAJA,J arr Writ Petition No.34050 of 2013 26.03.2014