Manishaben Kapilbhai Kashwala vs Chief Officer, Amreli Nagar ...
2022 Latest Caselaw 5329 Guj

      C/SCA/14586/2021                          ORDER DATED: 21/06/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14586 of 2021
==========================================================
                     MANISHABEN KAPILBHAI KASHWALA
                                   Versus
                    CHIEF OFFICER, AMRELI NAGAR PALIKA
==========================================================
Appearance:
KRUPABEN S LIMBACHIYA(7851) for the Petitioner(s) No. 1
MR.CHIRAG B UPADHYAY(6735) for the Petitioner(s) No. 1
MR VASANT R BAROT(5746) for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 21/06/2022
                   ORAL ORDER

1. RULE. Learned advocates appear and waive service of notice of Rule on behalf of the respective respondents.

2. In the present writ petition, the petitioner has challenged the action of the respondent for not correcting the name in the Birth Certificate of her daughter as "Sara Hanshrajbhai Kashwala."

3. The brief facts of the case are as under:

3.1 On 08.05.2015, the petitioner got married to one Shri Sagarbhai Hanshrajbhai Kapadiya, as per Hindu rites and rituals. On 09.11.2016, out of the said wedlock a daughter namely "Sara" was born and birth of the daughter is also registered with the office of the Birth and Death, Sub-Registrar, Nagar Palika, Amreli. On 22.04.2018, the petitioner and Sagarbhai Hanshrajbhai Kapadiya got separated by way of a divorce-deed and the custody of "Sara" is given to the petitioner.

3.2 On 02.12.2020, the petitioner got married to Shri Kapilbhai Nanubhai Kashwala at Sikhar Residency, Mota

C/SCA/14586/2021 ORDER DATED: 21/06/2022

Varachha, Surat. On 06.04.2021, the petitioner executed an adoption deed for adopting the daughter "Sara" and the same is registered at the office of Sub-Registrar, Athwa being document no.8117.

3.3 On 12.04.2021, the husband of the petitioner moved an application before the respondent authority to change the name from "Sara Sagarbhai Kapadiya" to "Sara Kapilbhai Kashwala".

4. Learned advocate for the petitioner has submitted that the respondent authority, while placing reliance on the circular dated 18.02.2016 issued by the State authority, which has been subsequently withdrawn by the State authority vide order dated 02.12.2021, has rejected the application of the petitioner. Thus, he has submitted that the impugned order may be set aside. He has placed reliance on the judgment of the Coordinate Bench of this Court in the case of Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel Vs. State of Gujarat and anr, 2019 (3) GLR 1866.

5. Learned AGP has submitted that the impugned order is passed by the respondent denying the correction in the date of birth for the reason that he does not have power in correcting so. He has further submitted that the State authority has withdrawn the said circular dated 18.02.2016.

6. It is admitted fact that the impugned order dated 19.04.2021 refers to the circular dated 18.02.2016, which has been withdrawn. At this stage, It would be apposite to refer the decisions of this Court in case of Sukumar Mehta vs. District Registrar, Births and Deaths, 1993 (1) GLR 93. This Court, after

C/SCA/14586/2021 ORDER DATED: 21/06/2022

examining the provisions of section 15 of the Registration of Births and Deaths Act, 1969 ( the Act) has held thus:

"In my opinion, the Act is silent about the contingency for subsequent correction of entry already made in Birth Register by correcting the name of the child at the instance of the parents, his is the case of unmindful legislative omission. This is classic case of casus omissi, i.e., circumstances concerning which an Act is silent. The question is how to deal with such contingencies ? Should the Court leave the litigant in sheer helpless condition asking him to wait till the legislature curds the defect by providing for the omission ? Can the Court escape the responsibility of considering these unforseen contingencies? However, I cannot ignore the modern tendency in Courts to take the view that if a case is entirely unprovided for by a Statute, either directly or indirectly, then it must remain nobody's child - a luckless orphan of the law (In re Leicester Permanent Building Society, 1942 Ch. 340). Same was the view of Devlin L. J. in Gladstone V/s. Bower, reported in 1960 (2) QB 384 when he observed "we cannot legislate for casus omiss". This tendency has given rise to inconvenient results. One option left for me is to express regrets for a statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. However, in my opinion, in this case there is "impalpable line" of distinction which should enable the Court to come out of helplessness. In this case" the caption of Sec. 15 gives general indication to give power to correct the entry in the Birth Register. However, specific case of correction of name of the child already entered is omitted to be provided for. When the entry is erroneous, there is power to correct. When it is factually improperly made, there is power of correction. Question is when entry is rightfully made can it be corrected by resort to this power ? In my opinion, once power to correct an entry already made in the Birth Register is conceded, it should legitimately take within its sweep the correction of entries rightfully made. It is the correction of the name of the child at the instance of the parents or wards. What possible objections can there be in reading such power in the authority if power to correct erroneous entry is conceded ? The omission in the present case appears to be non-deliberate. In my opinion, omission being not deliberate and not supported by cogent reasons it would not be hazardous to read "implied will of the Legislators" in this provision so as to authorise the Registrar to correct the name of the child at the instance of the parents. I, therefore, hold that there is power in the Registrar to correct the entry already made by entertaining the application of the parents. In undertaking this exercise, I am reminded of what C. K. Alien said in his book "Law in the Making":

"Judges must and do carry out the express will of the legislature as faithfully as they can, but there is a wide margin in almost every statute where the Courts cannot be said to be following any will except their own. The statute then becomes, as to great part of it, not a direct "command" but simply part of the social and legal material which judges have to handle according to their customary process of judicial logic."

      C/SCA/14586/2021                                   ORDER DATED: 21/06/2022



       Thus,      the   Coordinate      Bench     has     held      that       while

exercising powers under section 15 of the Act, the Registrar can correct an entry already made in the Birth Register if the same is conceded, and such correction should legitimately take within its sweep the correction of entries rightfully made.

7. In case of Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel, (supra) this Court, after considering various judgments of this Court has enunciated thus:

"21 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) 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."

It is held that the Registrar can correct the entries made in the Birth certificate after making inquiry and after going through the relevant material which may be produced by the applicant. Such correction and cancellation in the entries with relation to the name and date of birth comes within the purview of powers under section 15 of the Act and the circulars

C/SCA/14586/2021 ORDER DATED: 21/06/2022

cannot take away the power of the Registrar of making correction in entries of birth and death.

8. Thus, the impugned order dated 19.04.2021 is quashed and set aside, since the Circular dated 18.02.2016 is withdrawn by the State Government. The respondent is directed to pass a fresh order on the application filed by the petitioner by following necessary procedure as envisaged in Section 15 of the Registration of Births and Deaths Act, 1969 read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004. Necessary order shall be passed and communicated within a period of 04 (four) weeks from the date of receipt of writ of the order of this Court. It will also be open for the petitioner to file a fresh application accompanied with necessary documents in support of her case.

9. The present writ petition is allowed. Rule made absolute. Direct service is permitted.

(A. S. SUPEHIA, J) MAHESH BHATI/45