Gujarat High Court
Ankita Michaelbhai Macwan vs State Of Gujarat on 1 December, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12222 of 2023
==========================================================
ANKITA MICHAELBHAI MACWAN
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR JOHNSEY P MACWAN(5498) for the Petitioner(s) No. 1
MR. NIKUNJ KANARA, AGP for the Respondent(s) No. 1
MR ABHIJIT RATHOD(12976) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/12/2023
ORAL ORDER
1. By way of present petition, the petitioner herein has
prayed for following reliefs:
"8. For the reasons above stated, the petitioner most
respectfully prays that this Honourable Court may be
pleased:-
(A) Your lordship may pleased to issue a writ of mandamus or
a writ in the nature of mandamus or any other appropriate
writ, order or direction directing the respondent no. 2 for
carrying out necessary corrections in the name of the
petitioner in view of the materials produced therein.
(B) Be pleased to pass such other and further order that may
be deemed fit, appropriate and proper in the facts and
circumstances of the case in the interest of justice".
2. The petitioner herein seeks direction by invoking
Article 226 of the Constitution of India being aggrieved
by the impugned communication dated 13.6.2023 by the
respondent No.2 authority, wherein the prayers of the
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
petitioner with respect to change in the name of the
petitioner from "Minalbahen" to "Ankita" in the birth
certificate of the petitioner, came to be declined by the
respondent No.2 authority, placing reliance on Clause-
7.1. of the Resolution No. 1/12/2014-V.S. (CRS) 4154
dated 29.12.2014. Respondent No.2 authority has no
power to make the changes, as prayed for, in the birth
certificate of the petitioner.
3. Heard Mr. Johnsey P. Macwan, the learned advocate
appearing for the petitioner, Mr. Nikunj Kanara, the
learned AGP appearing for the respondent No.1 and Mr.
Abhijit Rathod, the learned advocate appearing for the
respondent No.2 authority.
4. Mr. Johnsey Macwan, the learned advocate
appearing for the petitioner submitted that the
application dated 3.6.2023 seeking change in the name of
the petitioner ought to have been considered by the
respondent No.2 authority, having produced on record
relevant documents on the basis of which, the respondent
No.2 authority was competent to carry out the change in
the name of the petitioner, as prayed for.
5. Mr. Abhijit Rathod, the learned advocate appearing
for the respondent No.2 authority was not in a position to
controvert the submissions advanced by the learned
advocate appearing for the petitioner.
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
6. Having heard the learned advocates appearing for
the respective parties, undisputedly, the petitioner herein
applied for change in the name of the petitioner from
"Minalbahen" to "Ankita" in the birth certificate of the
petitioner by an application dated 3.6.2023, which came
to be declined by the respondent No.2 authority by
impugned order dated 13.6.2023, on the ground that no
change can be effected in the petitioner's birth certificate
and also no change can be effected in the name by adding
"alias".
6.1 In the facts of the present case, the petitioner herein
has not produced the application before the Court to take
into consideration whether the documents required for
adjudication of the aforesaid request were produced
before the competent authority.
7. At this stage, it is apposite to refer to SCA No. 5793
of 2022 wherein aforesaid issue was considered and it
was held that the provisions of Section 7(1) of the Act
provide that by appointment of Registrar for exercise of
the power, which are conferred to the Registrar under
Section 15 of the Act. The said Paras-7,8, 9 and 10 read
thus:
"7. At this stage, I may with profit refer to the decisions of
this Court. In case of Sukumar Mehta (supra), this Court,
after examining the provision of section 15 of the
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
Registration 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
unforeseen 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
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
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."
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
7.1 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, since it is the correction of the name of the child at the
instance of the parents of wards.
8. In case of Sejalben Mukundbhai 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
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
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."
8.1 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 also comes within the purview of
powers under section 15 of the Registration Act.
9. So far as the contention with regard to provision of Section
7(1) of the Act is concerned, in is noticed that the provision
of Section 7(1) of the Act provides the appointment of the
registrar for exercise of the power, which are conferred to
the registrar under Section 15 of the Act, which is already
interpreted by this Court in catena of judgements.
10. Hence, impugned communication/order dated 15.02.2022
passed by the respondent authority is hereby quashed and
set aside. The respondents are directed to issue fresh birth
certificate to the petitioners correcting the name of their son
from "Dev" to "Ved". Such certificate shall be issue within a
period of 6 (six) weeks from the date of receipt of writ of
order of this Court."
8. Considering the facts of the present case and the
order dated 13.7.2022 passed in SCA No. 5793/2022, the
prayers as prayed for by the petitioner, require to be
allowed and the same are allowed.
NEUTRAL CITATION
C/SCA/12222/2023 ORDER DATED: 01/12/2023
undefined
9. Considering the fact that application dated 3.6.2023
is not on record, the petitioner herein to file fresh
application, along with relevant documents, and the same
be considered by the respondent authority, within a
period of 4 weeks from the receipt of this order, without
relying on the earlier order dated 13.6.2023, and decide
the said application, taking into consideration Section 15
of the Act and Rule 11 of the Gujarat Registration of
Births and Deaths Rules, 2004 and the position of law, as
referred above.
For the foregoing reasons, the petition stands
allowed to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J)
SAJ GEORGE
