The Gujarat High Court recently comprising of a bench of Justice A.S. Supehia allowed a writ seeking direction upon the Registrar of Birth and Death/Chief Officer, to delete the name of a minor's biological father's name from his birth certificate and replace it with his adoptive father's name.(CHHAYABEN @ HETALBEN ATULBHAI ASODARIYA Versus THE REGISTRAR OF BIRTH AND DEATH/CHIEF OFFICER)
The bench opined that neither is the consent of the biological father required to be obtained by the registrar nor is he required to be arraigned as a party to the writ petition, as the adoption deed was not in question.
Facts of the case
By way of the present petition under Article 226 of the Constitution of India, the petitioners, being guardians of their minor son 'Devam', are seeking a direction upon the respondent authority, directing it to amend and/or correct or mention the name of petitioner no.2 in the column of "father name" in the Birth Certificate of their son, which is issued by the respondent.
Contention of the Parties
Learned advocate Mr.Kikani appearing for the petitioners has submitted that even otherwise and without prejudice, as per Circulars dated 15.05.2015 and 31.01.2018 issued by the Ministry of Home Affairs, Government of India, only registered adoption deed is mandatory and decree of adoption from the court concerned has been discontinued. It is submitted that as per provision of the Hindu Adoptions and Maintenance Act, 1956 (for short "the Adoptions Act"), only registered adoption is mandatory. He has placed reliance on section 16 of the Adoptions Act in this regard. Thus, he has submitted that the appropriate orders may be passed.
In support of his submission, learned Advocate Mr.Kikani has placed reliance on the judgements in cases of Sukumar Mehta vs. District Registrar, Births And Deaths, 1993 (1) G.L.R. 93, Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel, 2019 (3) G.L.R. 1866.
In response to the above, Mr.Dave, learned advocate for the respondent authority has very candidly admitted that the impugned decision was premised on the circulars dated 12.08.2009 and 18.02.2016, which are subsequently canceled by the order dated 02.12.2021 issued by the State authority. He has submitted that as per provision of Section 9 of the Hindu Adoptions and Maintenance Act, the Registrar has to verify whether the Adoption Deed is valid or not and hence, the opinion of the biological father of the child is necessary. It is submitted that as per Section 9 of the Hindu Adoptions and Maintenance Act, the biological father has to be made a party respondent in the writ petition in order to verify whether the Adoption Deed produced by the petitioners is legal or valid.
Courts Observation and Judgment
The bench noted, "A bare perusal of the aforesaid Sections 14 and 15 of the Registration of Births and Deaths Act, 1969 reveals that the Registrar has to inquire about any entry of the birth and death in any register kept by him under the Act."
The bench taking note of the case Sukumar Mehta observed, "Thus, the Coordinate Bench has held that while exercising powers under section 15 of the Registration 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."
The bench further noted, "It is pertinent to note that a Divorce Deed dated 06.04.2016, which has been executed between petitioner No.1 and her former husband - Shaileshbhai Vallabhai Jadvani as per prevailing customs. In paragraph No.3 of the said deed, it was mutually decided that custody of minor son 'Devam' is accepted by the mother-petitioner no.1. Thereafter, the petitioner no.1 got married to petitioner no.2, and an adoption deed, adopting minor 'Devam' was registered on 15.03.2017 vide Registration No.2194. This gave rise for change in name of the father in the birth certificate registered at Serial No.665 by the respondent. An application in this regard was made to the respondent, but the same was rejected by the impugned communication asking the petitioners to produce an order of the local court with regard to the adoption."
The bench further remarked, " The stage of obtaining consent, as defined under section 9 of the Hindu Adoptions and Maintenance Act, 1956 cannot be invoked at the stage of incorporating the father’s name (adoptive) in the birth record of the son, after the divorce and adoption deeds have been registered and have not be questioned in any court of law or there is no other legal embargo and have remained uncontroveted. Thus, neither the biological father, i.e. the former husband of the petitioner no.1 is required to be made as a party to the writ proceedings for ascertaining his consent nor his opinion is necessary to be called for by the Registrar. The petitioner no.1 and 2 are happily married couple since more than five years and the adoption deed is also of 15.03.2017."
The bench allowing the Petition remarked, "In such circumstances and in light of undisputed facts, the opinion of biological father is not necessary and if the same is sought for, it will create further complications and delay in make the correction. As per the provision of section 16 of the Hindu Adoptions and Maintenance Act, 1956, a presumption has to be drawn in favour of the petitioners since there is no rebuttal of the adoption deed of the minor 'Devam'. The Registrar, who is the competent authority under the Registration of Births and Deaths Act, 1969 can only verify the correction of the adoption deed and if the same is found to be duly registered and valid, he has to make necessary corrections/changes in the birth records of the adopted child. In the present case, the Registrar has not questioned the registration of the adoption deed."
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