Abdulmiya Daudmiya Malek vs State Of Gujarat

      C/SCA/22983/2022                              ORDER DATED: 13/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 22983 of 2022

==========================================================
                         ABDULMIYA DAUDMIYA MALEK
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR HARISH J SONI(5142) for the Petitioner(s) No. 1
MRS BHARGVI H SONI(6243) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
==========================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 13/02/2023

                               ORAL ORDER

1. Rule returnable forthwith. Ms. Dharitri Pancholi, learned AGP waives service of notice of rule for the respondent-State. Though served, nobody appears for respondent No.2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.

2. The prayer in this petition is to quash and set aside the order dated 17.9.2022 passed by the respondent No.2 refusing to correct the name of the minor daughter of the petitioner from `Aayat' to "Ikra" in the birth register / birth certificate.

C/SCA/22983/2022 ORDER DATED: 13/02/2023

3. Learned counsel for the petitioner would rely on an order passed by the coordinate bench of this Court dated 13.07.2022 in SCA No.5793 of 2022 wherein the Court has extensively quoted the decisions of this Court on the issue. Relevant portion of the decision dated 13.07.2022 reads as under:

"6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

7. At this stage, I may with profit refer to the decisions of this Court. In case of Sukumar Mehta (supra), this Court, after examining the provision of section 15 of the Registration Act, has held thus: "In my opinion, the Act is silent about the contingency for subsequent correction of entry already made in Birth Register by correcting the name of the child at the instance of the parents, his is the case of unmindful legislative omission. This is classic case of casus omissi, i.e., circumstances concerning which an Act is silent. The question is how to deal with such contingencies? Should the Court leave the litigant in sheer helpless condition asking him to wait till the legislature curds the defect by providing for the omission? Can the Court escape the responsibility of considering these unforeseen contingencies? However, I cannot ignore the modern tendency in Courts to take the view that if a case is entirely unprovided for by a Statute, either directly or indirectly, then it must remain nobody's child - a luckless orphan of the law (In re Leicester Permanent Building Society, 1942 Ch. 340).

C/SCA/22983/2022 ORDER DATED: 13/02/2023 Same was the view of Devlin L. J. in Gladstone V/s. Bower, reported in 1960 (2) QB 384 when he observed "we cannot legislate for casus omiss". This tendency has given rise to inconvenient results. One option left for me is to express regrets for a statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. However, in my opinion, in this case there is "impalpable line" of distinction which should enable the Court to come out of helplessness. In this case" the caption of Sec. 15 gives general indication to give power to correct the entry in the Birth Register. However, specific case of correction of name of the child already entered is omitted to be provided for. When the entry is erroneous, there is power to correct. When it is factually improperly made, there is power of correction. Question is when entry is rightfully made can it be corrected by resort to this power ? In my opinion, once power to correct an entry already made in the Birth Register is conceded, it should legitimately take within its sweep the correction of entries rightfully made. It is the correction of the name of the child at the instance of the parents or wards. What possible objections can there be in reading such power in the authority if power to correct erroneous entry is conceded ? The omission in the present case appears to be non-deliberate. In my opinion, omission being not deliberate and not supported by cogent reasons it would not be hazardous to read "implied will of the Legislators" in this provision so as to authorise the Registrar to correct the name of the child at the instance of the parents. I, therefore, hold that there is power in the Registrar to correct the entry already made by entertaining the application of the parents. In undertaking this exercise, I am reminded of what C. K. Alien said in his book "Law in the Making": "Judges must and do carry out the express will of the legislature as faithfully as they can, but there is a wide margin in almost every statute where the Courts cannot be said to Page 3 of 6 Downloaded on : Mon Feb 13 21:07:14 IST 2023 C/SCA/22983/2022 ORDER DATED: 13/02/2023 be following any will except their own. The statute then becomes, as to great part of it, not a direct "command" but simply part of the social and legal material which judges have to handle according to their customary process of judicial logic."

7.1 Thus, the Coordinate Bench has held that while exercising powers under section 15 of the Act, the Registrar can correct an entry already made in the Birth Register, if the same is conceded and such correction should legitimately take within its sweep the correction of entries rightfully made, since it is the correction of the name of the child at the instance of the parents of wards.

8. In case of Sejalben Mukundbhai Patel (supra), this Court, after considering various judgments of this Court, has enunciated thus:

"21 From the aforesaid statutory provisions and the decisions rendered by this Court, following aspects would emerge: (a) The expression "erroneous in form of substance" in Section 15 of the Act of 1969 is an expression of wide amplitude and does not confine to simple typing errors or clerical mistakes and no guidelines or circulars can take away powers of the Registrar of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of the Act of 1969 and Rule 11(1) to (7) of the State Rules, 2004. (b) The Registrar appointed under the provisions of the Act of 1969 has got powers for correction in relation to the entries and the name also in the Register/ Birth Certificate and such correction or cancellation also comes within the purview of powers under Section 15 of the Act of 1969.

(c) The competent authority appointed under the provisions of the Act of 1969 has to consider whether the entry in the Birth Certificate/ Register can be Page 4 of 6 Downloaded on : Mon Feb 13 21:07:14 IST 2023 C/SCA/22983/2022 ORDER DATED: 13/02/2023 corrected or not, after making inquiry and after going through the relevant material, which may be produced by the concerned applicant or which may be called by competent authority for satisfying itself."

8.1 It is held that the Registrar can correct the entries made in the Birth Certificate, after making inquiry and after going through the relevant material, which may be produced by the applicant. Such correction and cancellation in the entries with relation to the name also comes within the purview of powers under section 15 of the Registration Act.

9. So far as the contention with regard to provision of Section 7(1) of the Act is concerned, in is noticed that the provision of Section 7(1) of the Act provides the appointment of the registrar for exercise of the power, which are conferred to the registrar under Section 15 of the Act, which is already interpreted by this Court in catena of judgments."

4. Ms. Pancholi, learned AGP for the respondent - State would vehemently oppose the petition on the ground that is not a minor clerical mistake inasmuch as spelling mistake, but it is entirely a new name. Moreover, there are no supporting documents and, therefore the order is just and proper.

5. Accordingly, the petition is allowed. The respondents are directed to change and correct the name of the minor daughter of the petitioner from `Aayat' to `Ikra' within a period of Page 5 of 6 Downloaded on : Mon Feb 13 21:07:14 IST 2023 C/SCA/22983/2022 ORDER DATED: 13/02/2023 Eight Weeks from the date of receipt of copy of this order.

6. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs.

(BIREN VAISHNAV, J) VATSAL Page 6 of 6 Downloaded on : Mon Feb 13 21:07:14 IST 2023