Gujarat High Court
Kajalben Savajibhai Godhani vs The Registrar Of Birth And Death, ... on 24 January, 2022
Bench: Vaibhavi D. Nanavati
C/SCA/9314/2021 ORDER DATED: 24/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9314 of 2021
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KAJALBEN SAVAJIBHAI GODHANI
Versus
THE REGISTRAR OF BIRTH AND DEATH, SURAT MUNICIPAL
CORPORATION
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Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1,2
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/01/2022
ORAL ORDER
1. Rule returnable forthwith. Ms. Roopal R. Patel, the
learned advocate waives service of notice of Rule on behalf of
the respondent.
2. By way of this writ-petition under Article 226 of the
Constitution of India, the writ-petitioners is challenging the
communication/order dated 26.4.2021, by which the
respondent authority refused to make changes as sought for by
the writ-petitioners. The writ-petitioners being a natural
guardian of their minor children, namely, son 'Sahil' and
'daughter 'Mahek' had approached the respondent authority by
making a representation dated 9.2.2021 to mention the name
of petitioner No.2 in the column of 'father name' in the Birth
Certificate of their son and daughter.
C/SCA/9314/2021 ORDER DATED: 24/01/2022
3. The respondent authority rejected the said application
preferred by the writ-petitioners dated 9.2.2021 by the
impugned communication/order dated 26.4.2021. 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.
4. Being aggrieved and dissatisfied with the aforesaid
order refusing to make correction in the birth certificate of the
minor children, namely, son 'Sahil' and 'daughter 'Mahek'
mentioning the name of the petitioner No.2 in column of
father's name in the birth certificate, the writ-petitioners are
constrained to approach this Court under Article 226 of the
Constitution of India seeking the following reliefs:
"(A) Be pleased to allow this 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 impugned written communication/
order dated 26.04.2021 at Annexure-G and thereby
directing the respondent to amend and /or correct or
mention the name of petitioner no.2 in the column of
'father name' as 'Savajibhai Goganbhai Godhani' in
C/SCA/9314/2021 ORDER DATED: 24/01/2022
place of 'Manojbhai Kalubhai Kachhadiya' in the birth
certificates of son and daughter of petitioners at
Annexure-A and to issue fresh birth certificate
accordingly, in the interest of justice.
(C) To pass such other and further orders necessary in
the interest of justice.
5. Heard Mr. S.M. Kikani, the learned counsel appearing
for the writ-applicant and Ms. Roopal R. Patel, the learned
counsel appearing for the respondent.
6. The petitioner No.1 married with one Manojbhai
Kalubhai Kachhadiya on 21.5.2002 and out of the wedlock of
the petitioner No.1 with said Manojbhai, a boy 'Sahil' was
born on 10.8.2003 and a girl 'Mahek' was also born on
26.10.2005. The petitioner No.1 and her husband - Manojbhai
took divorce and thereby marriage of petitioner No.1 with her
husband came to be dissolved. As per divorce deed, both
minor children will remain with wife i.e. petitioner No.1
herein. Thereafter the petitioner No.1 got married with
petitioner No.2 and the petitioner No.2 agreed to take all
responsibility of both minor children of petitioner No.1 and,
therefore, a deed of adoption has been executed between the
parties which came to be registered before the office of
Registrar vide Registration No.9914 on 16.12.2020.
C/SCA/9314/2021 ORDER DATED: 24/01/2022
7. In view of above, the writ-petitioners approached the
respondent authority for necessary changes in the name of
writ-petitioner no.2 as father instead of his biological father in
the birth certificate by entering the name of the writ-petitioner
no.2 in the column of father's name as 'Savajibhai Goganbhai
Godhani' in place of 'Manojbhai Kalubhai Kachhadiya'. The
above changes according to the writ-petitioners 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.
8. Mr. Kikani, the learned counsel relied upon the
circulars dated 15.05.2015 and 31.01.2018 duly issued by 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 registered adoption deed is
mandatory. Mr. Kikani 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.
9. Heard Mr. Kikani, the learned counsel appearing for
the writ-applicants. The writ-applicant no.1 is the natural
C/SCA/9314/2021 ORDER DATED: 24/01/2022
mother of minor son 'Sahil' and 'daughter 'Mahek', the writ-
applicant no.2 is the adoptive father of minor son 'Sahil' and
'daughter 'Mahek' 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 'Sahil' and 'daughter 'Mahek'.
10. 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 petitioner, Neelamben, came to be
dissolved. The said judgment records as under-
"The custody of the minor son shall remain with the petitioner
no.2/wife in future. The petitioner no.1/husband have (sic) has
waived his visitation rights to meet the minor in future."
The said decree is also registered.
11. It further appears that thereafter, a Deed of Adoption came to
be registered wherein the petitioner 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 petitioner that all
rights of minor son Harsh was given to Neelamben, the present
wife of the petitioner 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 petitioner and his wife have become parents of minor Harsh.
12. Section 16 of the the Hindu Adoptions and Maintenance Act,
1956, provides as under:
C/SCA/9314/2021 ORDER DATED: 24/01/2022
"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 petitioner 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 petitioner'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 petitioner 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 adoption by a registered deed would
be in favour of the petitioner.
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 petitioner and change the name of father from Snehal
Pravinbhai Jayswal to the present petitioner, 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
petitioner within a period."
C/SCA/9314/2021 ORDER DATED: 24/01/2022
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 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
C/SCA/9314/2021 ORDER DATED: 24/01/2022
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 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 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
C/SCA/9314/2021 ORDER DATED: 24/01/2022
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 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."
11. 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-3 to 36
of this petition), the said adoption deed is a registered
C/SCA/9314/2021 ORDER DATED: 24/01/2022
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.
12. Under such circumstances, the order/communication
addressed by the respondent dated 26.4.2021 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-petitioners dated 9.2.2021 afresh 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-petitioners. The authority 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
Government of India, Ministry of Home Affairs.
13. In view of above, the present writ-application succeeds
and the same is allowed. Rule is made absolute to the
aforesaid extent.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
