Sangeeta Jeramdas Khatri vs Chief Officer And Birth And Death ...
2022 Latest Caselaw 1474 Guj

      C/SCA/8407/2021                               ORDER DATED: 09/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 8407 of 2021
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                     SANGEETA JERAMDAS KHATRI
                                Versus
            CHIEF OFFICER AND BIRTH AND DEATH REGISTRAR
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Appearance:
MR. JARJEESKHAN(7235) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 09/02/2022
                             ORAL ORDER

1. Draft amendment dated 03.02.2022 is taken on record and the same is granted and the same is directed to be carried out within one week.

2. This Court issued notice on 19.07.2021, the respondent authority after issuance of notice has chosen not to appear in the matter.

3. The short facts which are journey to decide the present petition are stated thus:

3.1 The petitioner seeks to challenge the inaction on the part of the respondent authority of not deleting the father's name and not changing the mother's name from "Roshaniben" to "Sangeeta Jeramdas Khatri" in the birth certificate of the petitioner's son "Yash" on the basis of the circular issued by the Registrar General of India dated 21.07.2015 and also the Gazette notification as well as other documents issued to the petitioner by the competent authority.

       C/SCA/8407/2021                                    ORDER DATED: 09/02/2022




3.2    The petitioner got married to one Mr. Kishorbhai Ladaram

Kundanani and during their wedlock a son was born on 11.09.2005 named "Yash". In view of disputes between the couple they entered into a mutual understanding and separated on 20.02.2006 by way of mutual understanding. The birth of the son came to be registered immediately with the respondent authority at Registration No.2801 on 15.09.2005.

3.3 The petitioner approached the respondent authority to delete the father's name from column No.5 and to alter mother's name from "Roshaniben" to "Sangeeta Jeramdas Khatri" in column No.6 in her son's birth certificate by way of application dated 31.08.2019 which was duly received by the authority on 13.09.2019, which is produced at Annexure-C, of the petition.

3.4 The competent authority denied to change/replace the name of the father to the name of the petitioner in the birth certificate of her son "Yash" by impugned order dated 24.09.2019 duly produced at Annexure-D, of the petition. The said order dated 24.09.2019 reads thus:

"With reference to the subject noted above, guidance has been sought by you regarding removing father's name and correcting the mother's name in the birth certificate of Mr. Yash, son of Ms. Sangitaben Jerambhai Khatri. As there is no such provision under the Registration of Births and Deaths Act, 1969, such a correction cannot be done. Therefore, you are being informed thereabout and instructed to file her application."

C/SCA/8407/2021 ORDER DATED: 09/02/2022

4. The petitioner being aggrieved and dissatisfied by the said decision is constrained to approach this Court seeking following reliefs:

      "(A)      Admit the Application,


      (AA)      This Hon'ble Court may be pleased to allow this

application by quashing and set aside the order passed by the respondent authority dated 24.09.2019 (Annexure-D) to this petition.

(B) Allow this application by issuing a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authority to delete the name of the father and change/alter the mother's name in the Birth Certificate of the petitioner's son "Yash" and issue a fresh Birth Certificate of petitioner's son showing the name of the mother as "Sangeeta Jeramdas Khatri" and keep the column of father's name blank.

(C) Grant such other and further relief(s) as are deemed fit in the interest of justice."

5. Heard Mr. Jarjeeskhan, learned advocate for the petitioner.

5.1 Mr. Jarjeeskhan, learned advocate for the petitioner submitted that the petitioner is seeking change of name in the birth certificate of the son "Yash" from the father's name in column No.5 to name of the petitioner in column No.6 and seeking issuance of fresh birth certificate of the petitioner's son showing the name of the mother as "Sangeeta Jeramdas Khatri" and keeping the column of the father's name blank.

           C/SCA/8407/2021                              ORDER DATED: 09/02/2022




5.2        The circular dated 21.07.2015 issued by the Ministry of

Home Affairs, Government of India reads thus:

"1. Your attention is invited to the recent Judgment of Hon'ble

Supreme Court of India delivered on 6 th July, 2015 in respect of

KARUNA PURTI Vs. THE STATE (NCT OF DELHI), Civil Appeal

No.5003 of 2015 arising out of SLP (civil) No.28367 of 2011. This

appeal is directed against the High Court, Delhi Judgment dated

08.08.2011. The said appeal was filed under Section 7 of the

Guardians and Wards Act, 1890.

2. The Hon'ble Supreme Court in its Judgment stated that: "If a

single parent/unwed mother apply for the issuance of a Birth

Certificate for a child born from her womb, the Authorities concerned

may only require her to furnish an affidavit to this effect, and must

thereupon issue the Birth Certificate, unless there is a Court

direction to the contrary". The court also directed that no citizen

suffers any inconvenience or disadvantage merely because the

parents fail or neglect to register the birth.

3. Taking into consideration the above direction, you are requested

to issue the necessary direction to the concerned registration

functionaries for strict compliance of above direction and ensure

that no one is denied birth registration of a child of a single

parent/unwed mother. In such cases, the name of single parent will

be written in the birth record and name of other parent will be left

blank. For registration of such cases, the requisite documents as

suggested by the Hon'ble court should be retained as permanent

record. This office may be apprised about the action taken in this

regard."

6. The Hon'ble Supreme Court of India in the case of

C/SCA/8407/2021 ORDER DATED: 09/02/2022

KARUNA PURTI Vs. THE STATE (NCT OF DELHI) in Civil Appeal No.5003 of 2015, decided on 06.07.2015 has laid down the ratio which reads thus :

"1. We are greatly perturbed by the fact that the Appellant has

not obtained a Birth Certificate for her son who is nearly five

years old. This is bound to create problems for the child in the

future. In this regard, the Appellant has not sought any relief

either before us or before any of the Courts below. It is a

misplaced assumption in the law as it is presently perceived that

the issuance of a Birth Certificate would be a logical corollary to

the Appellant succeeding in her guardianship petition. It may be

recalled that owing to curial fiat, it is no longer necessary to

state the name of the father in applications seeking admission of

children to school, as well as for obtaining a passport for a minor

child. However, in both these cases, it may still remain

necessary to furnish a Birth Certificate. The law is dynamic and

is expected to diligently keep pace with time and the legal

conundrums and enigmas it presents. There is no gainsaying

that the identity of the mother is never in doubt. Accordingly, we

direct that if a single parent/unwed mother applies for the

issuance of a Birth Certificate for a child born from her womb,

the Authorities concerned may only require her to furnish an

affidavit to this effect, and must thereupon issue the Birth

Certificate, unless there is a Court direction to the contrary.

Trite though it is, yet we emphasize that it is the responsibility of

the State to ensure that no citizen suffers any inconvenience or

disadvantage merely because the parents fail or neglect to

register the birth. Nay, it is the duty of the State to take

C/SCA/8407/2021 ORDER DATED: 09/02/2022

requisite steps for recording every birth of every citizen. To

remove any possible doubt, the direction pertaining to issuance

of the Birth Certificate is intendedly not restricted to the

circumstances or the parties before us.

2. We think it necessary to also underscore the fact that the

Guardian Court as well as the High Court which was in seisin of

the Appeal ought not to have lost sight of the fact that they had

been called upon to discharge their parens patriae jurisdiction.

Upon a guardianship petition being laid before the Court, the

concerned child ceases to be in the exclusive custody of the

parents; thereafter, until the attainment of majority, the child

continues in curial curatorship. Having received knowledge of a

situation that vitally affected the future and welfare of a child,

the Courts below could be seen as having been derelict in their

duty in merely dismissing the petition without considering all the

problems, complexities and complications concerning the child

brought within its portals.

3. The Appeal is therefore allowed. The Guardian Court is

directed to recall the dismissal order passed by it and thereafter

consider the Appellant's application for guardianship

expeditiously without requiring notice to be given to the

putative father of the child."

7. The name of the petitioner is produced in the Government Gazette dated 27.06.2019 with regard to the change of name from old name "Roshaniben Kishorbhai

C/SCA/8407/2021 ORDER DATED: 09/02/2022

Kundanani" to the new name i.e. "Sangeeta Jeramdas Khatri" which figures on serial No.186 of the said Government Gazette.

8. The ratio as laid down by this Court in the case of Nitaben N. Patel Vs. State of Gujarat reported in 2008(1) GLR 884, wherein it is held that, it is well within the powers of the competent authority to decide the application with regard to the change in birth and death if applied by the applicant.

8.1. The Circular issued by the Central Government stipulates as follows which reads thus:

"if a single mother applies for the issuance of a Birth Certificate for a child born from her womb, the authorities concerned may require only an affidavit by the mother to this effect and must thereupon issue the Birth Certificate, unless there is a direction from a competent Court contrary to the same."

9. The petitioner has produced the following documents that are required to comply with the circular stated above:

i. Copy of the Birth Certificate of the petitioner's son "Yash", ii. True copy of the Divorce Agreement between petitioner and her husband, iii. A Copy of circular dated 21.07.2015 of Registrar General of India, iv. True copy of the Gujarat Government Gazette published on 27.06.2019, v. Original affidavit of the petitioner as per the resolution of the Registrar General of India.

Section 15 of the Registration of Births and Deaths Act,

C/SCA/8407/2021 ORDER DATED: 09/02/2022

1969,reads thus:

"15. Correction or cancellation of entry in the register of births and deaths.--If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation."

10. The Coordinate Bench of this Court by the judgment dated 16.01.2019 passed in Special Civil Application No. 19054 of 2018 has observed thus:

"22. 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/SCA/8407/2021 ORDER DATED: 09/02/2022

(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 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.

23. It is required to be noted that respondent No.2 has not stated in the impugned order that the father of the petitioner has given name as 'Manisha' while registering her name in the Birth Register and, therefore, respondent No.2 will not entertain the request of the petitioner for correction of the name. It is only the learned advocate who is appearing on behalf of respondent No.2, has raised contention, on the basis of the averments made by the petitioner in the memo of petition, that there was no mistake on the part of respondent No.2 in correcting the name of the petitioner and, therefore, respondent No.2 cannot be directed to correct the name of the petitioner. However, it ig required to be noted at this stage that this Court has considered the similar issue in Special Civil Application No.10126 of 2017 and observed in Paragraphs-3 and 4 as under:

"3. The petition is filed seeking a direction against the respondent under the provisions of the Registration of Births and Deaths Act, 1969 (Act of 18 of 1969) (for short "the Act") to correct the name of the petitioner's daughter from Purvi to Krupa, as, according to the petitioner, the said name was mistakenly entered into the birth register at the instance of the petitioner. The petitioner has made a representation in this regard produced at Annexure "C" which has been decided against the petitioner citing Circular dated 18.2.2016 purportedly prohibiting the respondent from correcting the name of a person in the birth register. On close perusal of the circular it transpires that once upon a time a clarification was made that the change in the name applied for by a person under the Act should not be permitted except where substantially the name remains the same, Such clarification came to be withdrawn subsequently and it appears' that because of withdrawal of such clarification the respondent authority finds itself bereft of the power to make correction of the errors even in cases where the name is not sought to be changed, but only correction of name is sought. This, in the opinion of this Court, is a total misreading of the circular. The

C/SCA/8407/2021 ORDER DATED: 09/02/2022

circular does not preclude correction of errors in the name; it once upon a time prohibited the change of name. This is not a case for change in name but a case where the parents of the baby girl Krupa have filed an affidavit stating that the correct name of their baby girl is Krupa and not Purvi as registered in the birth register. A reference to the decision in Nitaben Nareshbhai Patel v. State of Gujarat [2008(1) GLH 556] may be made at this stage where this Court has, after elaborately pointed out the correct legal position inter alia for dealing with applications under Section 15 of the Act. The respondent is thus under an obligation to adhere to the decision in Nitaben (supra) and address the issue again on that basis.

4. In above view of the matter, the petition deserves to succeed. Accordingly the petition is allowed. The impugned order dated 1.5.2017 is quashed and set aside with a direction to the respondent to reconsider the case of the petitioner in the light of the observations made in this judgment. The exercise shall be completed within a period of four weeks from the date of receipt of writ of this Court. Rule is made absolute to the aforesaid extent with no order as to costs. Direct service is permitted."

24.The aforesaid decision rendered by this Court has attained finality and it is not pointed out that the said decision is reversed by the higher forum.

25.Thus, answer to issue No.(i) framed as above, is that Circular dated 18.02.2016 issued by the Registrar, Births and Deaths and Commissioner (Health), State of Gujarat, cannot override the statutory provisions and answer to Issue No.(ii) is that Competent Authority appointed under the provisions of the Act of 1969 and Rules framed thereunder cannot simply rely upon the circular and reject the request of the concerned applicant, without making necessary inquiry.

26. Keeping in view the aforesaid legal position, if the facts as, discussed hereinabove are examined, it is revealed that respondent No.2 has rejected the request of the petitioner simply relying upon the Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat. It is not in dispute that while rejecting the request of the petitioner, respondent No.2 has not carried out any inquiry nor examined the documentary evidence produced by the petitioner. Therefore, the said

C/SCA/8407/2021 ORDER DATED: 09/02/2022

decision taken by respondent No.2 is required to be set aside.

27. In view of the aforesaid discussion, the petition is partly- allowed. Impugned order dated 06.07.2018 passed by respondent No.2 is quashed and set aside. Respondent No.2 is directed to reconsider the case of the petitioner in light of the observations made in the present order and pass appropriate order after making inquiry as contemplated under Section 15 of the Act of 1969 and after considering the documentary evidence produced by the petitioner. Respondent No.2 shall complete the said exercise within of period of six weeks from the date of receipt of a copy of this order."

11. In view of the above, the impugned order dated 24.09.2019 passed by the respondent- Chief Officer, Birth and Death Registrar, Bardoli Nagarpalika, Dist. Surat, is hereby quashed and set aside. The matter is remitted back to the respondent- Chief Officer, Birth and Death Registrar, Bardoli Nagarpalika, Dist. Surat, for deciding the application dated 31.08.2019 afresh. The respondent-Chief Officer, Birth and Death Registrar, Bardoli Nagarpalika, Dist. Surat, is directed to decide the application/representation dated 31.08.2019 (Annexure-C to the petition) made by the petitioner after taking into consideration the documents produced by the petitioner and follow the ratio as laid down by this Court in catena of judgments.

12. With the aforesaid direction, the present petition succeeds and is accordingly allowed to the aforesaid extent. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) SLOCK BAROT