Monikaben Chetanbhai Gondaliya vs The Registrar Of Birth And Death, ...
2022 Latest Caselaw 749 Guj

     C/SCA/12605/2021                          ORDER DATED: 24/01/2022



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 12605 of 2021

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           MONIKABEN CHETANBHAI GONDALIYA
                           Versus
 THE REGISTRAR OF BIRTH AND DEATH, SURAT MUNICIPAL
        CORPORATION (EAST ZONE A, VARACHHA)
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Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                         Date : 24/01/2022

                           ORAL ORDER

1. By way of this writ-petition under Article 226 of the Constitution of India, the writ-applicants is challenging the communication dated 15.07.2021, 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 12.07.2021 seeking change in the name of the petitioner no.2 in the column of 'father name' as 'Chetan Dhirubhai Gondaliya' in place of 'Vrushabhbhai Jaysukhbhai Kathrotiya' in the birth certificate of girl of the petitioners, viz. 'Maitri'.

2. The respondent authority refused the said application

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preferred by the writ-applicants dated 12.07.2021 by the impugned order dated 15.07.2021. 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.

3. Being aggrieved and dissatisfied with the aforesaid order refusing to make correction in the birth certificate of the daughter- 'Maitri' by mentioning the name of the petitioner 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) 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 15.07.2021 at Annexure-F, 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 'Chetan Dhirubhai Gondaliya' in place of 'Vrushabhbhai Jaysukhbhai Kathrotiya' in the birth certificate of girl of the petitioners (Annexure-A) and to issue fresh birth certificates accordingly, in the interest of justice.

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(C) To pass such other and further orders necessary in the interest of justice."

4. Heard Mr. S.M. Kikani, the learned counsel appearing for the writ-applicants. Though served, the respondent has chosen not to appear in the matter.

5. The writ-applicant no.1 had married with one Vrushabhbhai Jaysukhbhai Kathrotiya on 30.11.2012 and out of the said wedlock of writ-applicant no.1 with said Vrushbhbhai, a daughter, viz. ''Maitri'' was born on 22.06.2015. Pursuant to that, on 25.06.2015, her birth was registered with the sub office of the respondent at Varachha Zone, Surat. Due to matrimonial disputes between the writ applicant no.1 and her husband, they decided to get separated, and therefore, they had executed a deed of divorce on 24.10.2019 and they mutually decided to keep custody of minor child with mother i.e. writ applicant no.1. Thereafter, on 25.05.2020, the writ applicant no.1 got married with the writ applicant no.2 at Surat. The writ-applicant No.2 adopted the minor daughter-'Maitri' 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. 5018 on 19.04.2021.

6. In view of above, the writ-applicants approached the

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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 'Chetan Dhirubhai Gondaliya' in place of 'Vrushabhbhai Jaysukhbhai Kathrotiya' in the birth certificate of daughter of the petitioners, viz. 'Maitri'. 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. 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.

8. Heard Mr. Kikani, the learned counsel appearing for the writ-applicants. The writ-applicant no.1 is the natural mother

C/SCA/12605/2021 ORDER DATED: 24/01/2022

of minor daughter - 'Maitri', the writ-applicant no.2 is the adoptive father of minor daughter- 'Maitri' 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 daughter - 'Maitri'. .

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 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:

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"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."

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9.1. 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

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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 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.

9.2. 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,

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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 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- 27 to 39 of this petition), the said adoption deed is a registered adoption deed. All other requirements as

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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.

11. Under such circumstances, the order passed by the respondent dated 15.07.2021 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 12.07.2021 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-applicants. 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.

12. In view of above, the present writ-application succeeds and the same is allowed in aforesaid terms. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman