Gujarat High Court
Kailashben Hasmukhbhai ... vs State Of Gujarat on 16 February, 2022
Bench: Vaibhavi D. Nanavati
C/SCA/6859/2021 ORDER DATED: 16/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6859 of 2021
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KAILASHBEN HASMUKHBHAI RANPARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK D MUCHHALA(5634) for the writ-applicant(s) No. 1,2
GOVERNMENT PLEADER for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 16/02/2022
ORAL ORDER
1. By way of this writ-petition under Article 226 of the
Constitution of India, the writ-applicants are challenging the
communication dated 17.02.2021, by which the respondent
authority refused to make changes as sought for by the writ-
applicants. The writ-applicants had approached the respondent
authority by making a representation dated 11.11.2020 seeking
change in the name of the writ-applicant no.2 in the column
of 'father name' in the birth certificate of their son- 'Roshan'.
2. The respondent authority refused the said application
preferred by the writ-applicants dated 11.11.2020 by the
impugned order dated 17.02.2021. The respondent authority
rejected the application seeking the aforesaid change on the
ground that the respondent authority would not exercise any
power to carry-out any correction in the birth certificate in
light of the certain notifications and resolutions by the State
Government.
C/SCA/6859/2021 ORDER DATED: 16/02/2022
3. Being aggrieved and dissatisfied with the aforesaid order
refusing to make correction in the birth certificate of the son
'Roshan' by mentioning the name of the writ-applicant No.2 in
column of father's name in the birth certificate, the writ-
applicants are constrained to approach this Court under Article
226 of the Constitution of India seeking the following reliefs:
"(A) Your Lordships may be pleased to admit and allow
the present petition;
(B) Your Lordships be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction by quashing
and setting aside the order dated 17.02.2021 at
Annexure-B, passed by the respondent no.2and also
further be pleased to direct the respondent authorities to
correct the father's name from 'Mukeshkumar Dhirubhai
Zalavadiya' to 'Hasmukhbhai Balubhai Ranpariya' in birth
certificate and further be pleased to direct the respondent
authorities to provide amended birth certificate.
(C) Your Lordships may be pleased to grant such other
and further relief that is just, fit and expedient in the
facts and circumstances of the case."
4. Heard Mr.Hardik Muchhala, the learned counsel
appearing for the writ-applicant and Mr.H.S.Munshaw, the
learned counsel appearing for the respondent.
5. The writ-applicant no.1 was married to one
C/SCA/6859/2021 ORDER DATED: 16/02/2022
Mr.Mukeshbhai Dhirubhai Zalavadiya on 08.12.2013 and out of
the said wedlock of writ-applicant no.1 with said Mukeshbhai,
a boy, viz. ''Roshan'' was born and due to death of writ
applicant no.1's husband, the writ applicant no.1 got married
with the writ applicant no.2.. The writ-applicant No.2 adopted
the minor son-'Roshan' with the consent of the family members
and by way of adoption deed dated 11.07.2019 duly executed
between the parties which came to be registered before the
office of the Registrar.
6. In view of above, the writ-applicants approached the
respondent authority for necessary changes in the name of
writ-applicant no.2 as father instead of his biological father in
the birth certificate by entering the name of the writ-applicant
no.2 in the column of father's name as Mr.Hasmukhbhai
Balubhai Ranapariya in place of 'Mr.Mukeshbhai Dhirubhai
Zalavadiya'. The above changes according to the writ-
applicants are necessary to see to it that no future difficulties
would occur in the issuance of the process of passport and
other legal formalities, etc.
7. Mr.Muchhala, the learned counsel relied upon the
circulars dated 15.05.2015 and 31.01.2018 duly issued by the
of the Government of India, Ministry of Home Affairs
and submitted that the respondent could not have
rejected the application preferred by the writ-applicants in
view of the fact that according to the said circulars only
C/SCA/6859/2021 ORDER DATED: 16/02/2022
registered adoption deed is mandatory. Mr.Muchhala also
submitted that under the provisions of Section 15 of the
Registration of Births and Deaths Act, Act and Rule-11 of the
Registration of Births and Deaths Rules also empowers the
authority to correct, delete, alter or amend any entry posted in
the birth certificate, as the authority is vested with the clear
jurisdiction to undertake the requisite changes as sought for.
8. Heard Mr.Muchhala, the learned counsel appearing for
the writ-applicants. The writ-applicant no.1 is the natural
mother of minor son-'Roshan', the writ-applicant no.2 is the
adoptive father of minor son-'Roshan' and the writ-applicants
are seeking name of the writ-applicant no.2 as father in the
column no.2 in the birth certificate of son-'Roshan'.
9. At this stage, it is apposite to refer to the order passed
by the coordinate bench of this Court in Special Civil
Application No. 7864 of 2016, relevant paras read thus:
"10. Upon considering the submissions made and on perusal of the
record, it clearly transpires that by a judgment and decree dated
18.02.2012 passed by the Family Court, Ahmedabad in Family Suit
No.688 of 2011, the marriage solemnized between respondent no.3
and the wife of the present writ-applicant, Neelamben, came to be
dissolved. The said judgment records as under-
"The custody of the minor son shall remain with the writ-applicant
no.2/wife in future. The writ-applicant no.1/husband have (sic) has
waived his visitation rights to meet the minor in future."
The said decree is also registered.
C/SCA/6859/2021 ORDER DATED: 16/02/2022
11. It further appears that thereafter, a Deed of Adoption came to
be registered wherein the writ-applicant has adopted minor Harsh
and such Adoption Deed is duly registered under Registration
No.7262 dated 18.11.2015. It is clear from the decree of divorce
between respondent no.3 herein and wife of the present writ-
applicant that all rights of minor son Harsh was given to
Neelamben, the present wife of the writ-applicant and thereafter, a
registered Deed of Adoption is executed, which is in accordance
with law and the Adoption Deed was registered with the
competent authority and at present the writ-applicant and his wife
have become parents of minor Harsh.
12. Section 16 of the the Hindu Adoptions and Maintenance Act,
1956, provides as under:
"Whenever any document registered under any law for the time
being in force is produced before any court purporting to record
an adoption made and is signed by the person giving and the
person taking the child in adoption, the court shall presume that
the adoption has been made in compliance with the provisions of
this Act unless and until it is disproved."
13. In the case on hand, the decree of divorce between the
biological parents clearly provides that custody of minor Harsh
would be with the wife of the writ-applicant and respondent no.3
as former husband, has given up all his rights. The Deed of
Adoption is a registered deed which is not challenged by anybody.
On the contrary, as noted hereinabove, respondent no.3 who
happens to be the biological father of the minor child Harsh has
expressed by way of an affidavit before this Court in this petition
unequivocally that he has no objection if the writ-applicant's name
is substituted as father. Thus, as provided under section 16 of the
Hindu Adoptions and Maintenance Act, 1956, minor Harsh is
lawfully adopted and the Deed of Adoption is registered and
therefore the presumption as per the provisions of section 16 of
the Act can be drawn in favour of the writ-applicant as there is
no rebuttal by the procedure known to the law. Following the
ratio laid down by this Court in the case of N.R. Trivedi v.
District Education Officer, Anand, AlIR 2004 Guj S3, thus, from
the record of this case, it appears that the presumption as regards
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adoption by a registered deed would be in favour of the writ-
applicant.
14.In light of the aforesaid therefore, the following direction is
issued-
a. The respondent Corporation shall make entry in the birth
certificate of the minor child Harsh according to the application of
the writ-applicant and change the name of father from Snehal
Pravinbhai Jayswal to the present writ-applicant, ie., Tushar
Kanaiyalal Vyas.
b. Such exercise shall be carried out by the respondent no.2
authority as expeditiously as possible and a fresh birth certificate
of minor child Harsh with necessary entries shall be issued to the
writ-applicant within a period."
Circular dated 15.05.2015 issued by the
Government of India, Ministry of Home Affairs,
reads thus:-
"Please refer this office letter of even
number dated 12th March, 2012 vide which
instructions were issued on framing
procedure for making; changing entries in
birth adoption, Later on, taken into
consideration the 2011 CARA guidelines, a
clarification was issued by this office
letter of even number dated 25th August,
2014 through which submission of adoption
deed and adoption order (both) has been made
mandatory for registration of birth of
children taken on adoption and issue of
birth certificate to them.
2. In response to the aforesaid
clarification, this office has received
certain queries on submission of adoption
order and adoption deed in respect of non-
institutional adoptions. In this regard, it
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has been quoted that non-institutional
adoptions are taken place under the
provision of Hindu Adoption and Maintenance
(HAMA) Act, 1956" and under Section 16 of
this Act; the need for production of
adoption deed i.e document registered under
any law and signed by both parties is
sufficient. In this regard, the authenticity
of the adoption deed would have to be
checked only with the criteria prescribed
under the HAMA Act.
3. In order to address the difficulties in
producing the adoption order by general
public in case of adoption within relatives/
acquaintances, the matter has been reviewed
and also discussed with the Central Adoption
Resource Authority (CARA) of Ministry of
Women & Child Development. Accordingly, it
has been decided that for in country non-
institutional adoptions took place within
relations or acquaintances, registered
adoption deed is enough, there would be no
need to produce adoption order of a court
for such cases.
4. However, before registering or making
corrections in the birth record, the
correctness of the adoption deed should be
verified by the Registrar of births and
deaths and if adoption deed is found to be
valid duly registered before the Sub
Registrar authorized by the State
Government, the concern Registrar should
make necessary changes in the birth record
on the basis of the information given in the
adoption deed and insert the name of
adoptive parents and child and issue the
birth certificate of the adopted child.
Further, it is also clarified that in case
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of non-institutional event, if a adopted
child is more than one year old and his/ her
birth is not-found registered earlier then
as per the prescribed procedure of section
13 (3) of the Registration of Births and
Deaths (RBD) Act 1969 an order of local
Magistrate under the Delayed registration
provision should also be obtained before
registering the said event.
5. In view of the above facts and taken into
consideration the difficulties faced by the
public in getting the birth certificate of
adopted children, you are requested to
direct the aforesaid contents to the
concerned authorities and direct them to
issue the birth certificate of adopted
children on priority basis and ensure that
desired birth certificate should be issued
within 7 to 10 days from the date of
submission of documents by the adoptive
parents to the concerned Registrar. This
office may be appraised about the action
taken in this regard.
Circular dated 31.01.2018 issued by the
Government of India, Ministry of Home Affairs,
reads thus:-
Please -refer this office letter of even
number dated 12th March, 2012 and 25th August
2014 vide which instructions were issued
regarding registration procedure on making/
changing entries 'in birth record of children
taken on adoption. These instructions were
issued taken into consideration the 2011
guidelines of Central Adoption Resource
Authority (CARA) under which submission of
adoption deed and adoption order (both) were
C/SCA/6859/2021 ORDER DATED: 16/02/2022
made mandatory for registration of birth and
issue of birth certificate of children taken
on adoption•
2. You may be aware that through the
aforesaid directions, adoption order and
adoption deed both were made mandatory for
registration of birth of adopted children
whether through adoption agencies
(institutional) or non-institutional
adoptions. Later on during 2015, a
clarification was issued by this office on
15th May, 2015 through which the system of
production of adoption order of a court in
case of non-institutional adoptions has been
discontinued in the light of the provisions
of 'Hindu Adoption and Maintenance (HAMA)
Act, 1956 and registered adoption deed has
been made mandatory for such registration",
3. Now in respect of adoptions made
through institutions i.e. adoption agencies,
the Ministry of Women & Child Development has
revised its guidelines and notified the same
in Gazette Notification dated 04-01-2017 as
'Adoption Regulations 2017' wherein removes
the clause of production of adoption deed for
institutional adoptions and mentioned at
section 36 of the new notification that
production of adoption order of the Court is
sufficient for registration of birth of child
adopted through adoption agencies.
4. In order to address the difficulties in
producing the adoption deed by general public
in case of adoption through institutions
(adoption agencies), the matter has been
reviewed and accordingly, it has been decided
not to insist the public for production of
adoption deed for registration of birth of
adopted child and register the birth event or
make necessary correction/ change on the
basis of adoption order of the court and
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issue the birth certificate of the adopted
child.
5. In view of the above facts, you
are requested to direct the aforesaid
contents to the concerned registration
authorities in the State and direct them to
issue the birth certificate of adopted
children on priority basis with the name of
adoptive parents as parents. This office may
be appraised about the action taken in this
regard."
10. In view of the aforesaid ratio as laid down by this Court,
the only requirement is to have a valid adoption deed, which
is duly produced by the writ-applicants (at page-40 to 52 of
this petition), the said adoption deed is registered adoption
deed. All other requirements as contemplated under the Act
and Rules are also fulfilled by the writ-applicants. There was
no reason for the respondent authority not to consider the
application made by the writ-applicants. As per the
aforementioned circulars, the impugned order passed by the
respondent / competent authority is not sustainable. Further
this is the second round of litigation by the writ applicants
and their application came to be rejected by the order dated
17.02.2021. This Court while deciding Special Civil Application
No.15466 of 2020, by the order dated 27.01.2021, remanded
the matter for reconsideration. The authority once again
rejected the application preferred by the writ applicants.
11. Under such circumstances, the order passed by the
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respondent dated 17.02.2021 is required to be quashed and set
aside and the same is quashed and set aside. The respondent
authority is directed to decide the application filed by the
writ-applicants dated 11.11.2020 positively within a period of
eight weeks from the date of the receipt of the copy of the
order taking into consideration all the documents that are
produced by the writ-applicants. The authority therefore is also
directed to take into consideration the law as laid down by
this Court in Special Civil Application No. 7864 of 2016, the
circulars dated 15.05.2015 and 31.01.2018 duly issued by the
of the Government of India, Ministry of Home Affairs,
Government of India.
12. In view of above, the present writ-application succeeds
and the same is allowed.
(VAIBHAVI D. NANAVATI,J)
NABILA
