Daya Jitendrakumar Balar vs Registrar Of Birth And Death
2022 Latest Caselaw 747 Guj

     C/SCA/9747/2021                                   ORDER DATED: 24/01/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 9747 of 2021
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              DAYA JITENDRAKUMAR BALAR
                           Versus
            REGISTRAR OF BIRTH AND DEATH
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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 dated 01.06.2021 (Annexure-D), by which the respondent authority refused to make changes as sought for by the writ-petitioners. The writ-petitioners had approached the respondent authority by making a representation dated 24.05.2021 seeking change in the name of the petitioner no.2 in the column of 'father name' as 'Jitendra Dhirubhai Balar' in place of 'Jaydipbhai Manjibhai Nakrani' in the birth certificate of girl of petitioners, viz. Vaishnavi (Annexure-A).

      C/SCA/9747/2021                                 ORDER DATED: 24/01/2022




3.             The      respondent       authority   refused        the        said

application preferred by the writ-petitioners dated 24.05.2021 by the impugned order dated 01.06.2021. 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 daughter- Vaishnavi' by mentioning the name of father as 'Jitendra Dhirubhai Balar' in place of 'Jaydipbhai Manjibhai Nakrani', 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 written communication dated 01.06.2021 at Annexure-D, by directing the respondent authority for to amend and / or correct or mention the name of petitioner no.2 in the column of 'father name' as 'Jitendra Dhirubhai Balar' in place of 'Jaydipbhai Manjibhai Nakrani' in the birth certificate of girl of

C/SCA/9747/2021 ORDER DATED: 24/01/2022

petitioners (Annexure-A) and to issue fresh birth certificates 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-petitioners and Ms. Roopal R. Patel, the learned counsel appearing for the respondent.

6. The writ-petitioner no.1 had married with one Jaydipbhai Manjibhai Nakrani on 29.11.2013 and out of the said wedlock of petitioner no.1 with Jaydipbhai, a girl, viz. 'Vaishnavi' was born on 18.01.2019 and pursuant to that on 11.02.2019, her birth was registered with the office of the respondent at Surat. Thereafter, husband of petitioner no.1, viz. Jaydipbhai passed away on 25.12.2018 and since then, the girl, viz. 'Vaishnavi' is residing with petitioner no.1. On 18.10.2020, the petitioner no.1 got married with petitioner no.2 at Surat and the same came to be registered in the office of Marriage of Registrar, SMC, Surat. The petitioner no.2 also agreed to take all responsibility of girl of petitioner no.1, and therefore, he has adopted the minor daughter, Vaishnavi with the consent of the family members and by way of adoption deed duly executed between the parties which came to be registered before the office of the Registrar vide Registration No. 11703 on 15.04.2021.

C/SCA/9747/2021 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 'Jitendra Dhirubhai Balar' in place of 'Jaydipbhai Manjibhai Nakrani' in the birth certificate of daughter, Vaishnavi. 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 circular dated 15.05.2015 of the Government of India, Ministry of Home Affairs and the circular dated 18.02.2016 of the State Government and submitted that the respondent could not have reject the application preferred by the writ-petitioners 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 empower 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

C/SCA/9747/2021 ORDER DATED: 24/01/2022

the writ-petitioners. The writ-petitioner no.1 is the natural mother of minor daughter- Vaishnavi, the writ-petitioner no.2 is the adoptive father of minor daughter - Vaishnavi and the writ-petitioners are seeking name of the writ-petitioner no.2 as father in the column no.2 in the birth certificate of daughter - Vaishnavi. The writ-petitioners have as per the requirement under the Act produced the birth certificate, school leaving certificate, etc., alongwith the application before the respondent authority. The said documents are also produced alongwith the present writ-petition. I have gone through the said documents. 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

C/SCA/9747/2021 ORDER DATED: 24/01/2022

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:

"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

C/SCA/9747/2021 ORDER DATED: 24/01/2022

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."

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-petitioners (at page-11 to 22 of this petition), the said adoption deed is also supported by two witnesses and the same is a registered adoption deed. All other requirements as contemplated under the Act and Rules are also fulfilled by the writ-petitioners. There was no reason for the respondent authority not to consider the application made by the writ-petitioners. The authority has further rejected the application on the basis of the circular dated 18.02.2016. The said circular stands cancelled by a notification dated 02.12.2021, that is also one of the reasons,

C/SCA/9747/2021 ORDER DATED: 24/01/2022

the impugned order passed by the respondent / competent authority is not sustainable.

11. Under such circumstances, the order passed by the respondent dated 01.06.2021 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 24.05.2021 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 circular of the Central Government dated 15.05.2015 and circular of the State Government dated 02.12.2021.

12. In view of above, the present writ-application succeeds and the same is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman