Don Paul vs State Of Kerala
2021 Latest Caselaw 1955 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                       WP(C).No.9721 OF 2020(M)


PETITIONER:

               DON PAUL
               AGED 37 YEARS
               S/O. PAUL PAUL, THENGUMPALLY HOUSE, MANJOOR VILLAGE,
               KOTTAYAM 686 603.

               BY ADV. PARTY IN PERSON (DON PAUL)

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF
               GOVERNMENT (URBAN) DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM 695 001.

      2        THE CHIEF REGISTRAR OF BIRTHS AND DEATHS,
               DIRECTORATE OF PANCHAYATHS, PUBLIC OFFICE P.O.
               THIRUVANANTHAPURAM 695 033.

      3        THE DEPUTY DIRECTOR OF PANCHAYATH,
               O/O. THE DEPUTY DIRECTOR OF PANCHAYATH, KOTTAYAM 686
               002.

      4        SECRETARY,
               LOCAL SELF GOVERNMENT (RURAL) DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM 695 001.

      5        THE DIRECTOR OF URBAN AFFAIRS,
               DIRECTORATE OF MUNICIPALITY, THIRUVANANTHAPURAM 695
               003.

      6        THE JOINT DIRECTOR (HEALTH),
               DIRECTORATE OF MUNICIPALITIES, THIRUVANANTHAPURAM 695
               003.

      7        THE REGIONAL JOINT DIRECTOR,
               O/O. THE REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS,
               DEPARTMENT, CANTONMENT P.O. KOLLAM 691 001.

      8        THE ETTUMANOOR MUNICIPALITY,
               ETTUMANOOR P.O. KOTTAYAM 686 631, REP. BY ITS
               SECRETARY.
 WP(C).No.9721 OF 2020(M)

                                 2



       9       TISA DON @ TISA PALACKAL KURIAKOSE,
               AGED 32 YEARS
               D/O. GEORGE KURIAKOSE, PALACKAL HOUSE, BUS STAND
               ROAD, VAIKOM P.O. KOTTAYAM DISTRICT 686 141.

               R1-7 BY ADV.SRI.K.J.MANURAJ,GOVERNMENT PLEADER
               R8 BY SRI.SIBY CHENAPPADY, SC, ETTUMANOOR
               MUNICIPALITY
               R9 BY ADV. SRI.ABRAHAM P.GEORGE
               R9 BY ADV. SMT.M.SANTHY

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-
01-2021, THE COURT ON 19-01-2021 DELIVERED THE FOLLOWING:
 WP(C).No.9721 OF 2020(M)

                                       3




                           W.P.(C) No.9721 of 2020
                 -----------------------------------------------

                               JUDGMENT

The ninth respondent is the divorced wife of the petitioner.

Earlier, the birth of the female child born to them on 22.03.2014 was

registered without the name of the child. Thereafter, on Ext.P4

application purported to have been preferred by both the petitioner

and the ninth respondent on 17.08.2015, the name of the child was

entered in the relevant column of the Birth Register as 'Elena Maria'.

On 05.08.2016, the petitioner preferred Ext.P8 complaint to the

Registrar of Births, the Secretary of the eighth respondent Municipality

alleging that Ext.P4 application is one filed without his knowledge and

consent. On Ext.P8 complaint, the petitioner has been given Ext.P9

communication by the Registrar, stating that he is informed that a

litigation is pending between the parties concerning the inclusion of

the name of the child in the Birth Register and action on the complaint

can therefore be taken only after the culmination of the pending court

proceedings. The writ petition is essentially one challenging Ext.P9

communication. The petitioner also seeks appropriate directions to the

respondents concerned to correct the name of the child in the Birth

Register as 'Maria Don'.

2. Heard the petitioner who appeared in person, the

learned Government Pleader, the learned counsel for the the Municipality

as also the learned counsel for the ninth respondent.

3. The petitioner has reiterated the case set out by him in

the writ petition that Ext.P4 is an application preferred without his

knowledge and consent. It was submitted by the petitioner that in the

light of Ext.R5(a) circular, it was obligatory for the competent authority to

ensure that the application has been filed with the consent of both the

parents of the child and that the competent authority has acted upon

Ext.P4 application without ensuring the said fact. He, therefore, prayed

for appropriate directions to correct the name of his daughter as prayed

for in the writ petition.

4. Per contra, the learned counsel for the ninth respondent

submitted that the petitioner does not dispute in Ext.P8 complaint that

the signature in Ext.P4 application is not one put by him. According to

the counsel, the petitioner is therefore not entitled to any relief.

5. As noted, the birth of the child was registered without

the name of the child and Ext.P4 application was therefore, preferred

under Rule 10 of the Registration of Births and Deaths Rules, 1999 (the

Rules) to enter the name of the child in the Birth Register. It is beyond

dispute that it is on Ext.P4 application that the name of the child was

entered in the Birth Register as 'Elena Maria'. As noted, the case of the

petitioner is that Ext.P4 application is one submitted by the ninth WP(C).No.9721 OF 2020(M)

respondent without his knowledge and consent. The relevant

paragraph in Ext.P8 complaint dealing with the said case reads thus:

"4. That, on the basis of this application your office had issued Birth Certificate of my child incorporating her name as 'ELENA MARIA' to my wife. In this regard it is respectfully submitted that, the above said application was filed without my knowledge, information and consent and even without obtaining my signature legally."

It is clear from the extracted passage of Ext.P8 complaint that the case

of the petitioner is that the name of his daughter has been entered in

the Birth Register fraudulently. Section 15 of the Registration of Births

and Deaths Act, 1969 (the Act) confers jurisdiction on the Registrar to

correct such entries. Section 15 of the Act reads thus:

"15. Correction or Cancellation of entry in the register of births and deaths:- If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation."

A reading of the extracted provision indicates that in a case of this

nature, it is obligatory on the part of the Registrar to conduct an

enquiry to ascertain whether the case put forward by the petitioner is

correct. Admittedly, such an enquiry has not been conducted by the WP(C).No.9721 OF 2020(M)

Registrar.

The writ petition, in the circumstances is disposed of

directing the Registrar of Births attached to the eighth respondent

Municipality to conduct an enquiry as provided for under Section 15 of

the Act, after affording both the petitioner as also the ninth respondent

an opportunity of hearing. Needless to say that if it is found in the said

enquiry that Ext.P4 is an application preferred without the knowledge

and consent of the petitioner, appropriate correction shall be made in

the Birth Register. The direction aforesaid shall be complied with,

within three months.

Sd/-

                                            P.B.SURESH KUMAR

Mn                                                JUDGE
 WP(C).No.9721 OF 2020(M)




                               APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE FIR IN CRIME NO. 54/2015
                           OF KADUTHURUTHI POLICE STATION.

EXHIBIT P2                 TRUE COPY OF THE PRINTOUT OF THE BIRTH

CERTIFICATE DATED 14.05.2016 OF THE MINOR CHILD ISSUED BY THE 8TH RESPONDENT TO THE 9TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE COVERING LETTER DATED 16.06.2016 ISSUED BY THE 8TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR BIRTH CERTIFICATE DATED 17.08.2015 SUBMITTED BY THE 9TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE BIRTH CERTIFICATE DATED 22.03.2014 ISSUED BY THE CARITHAS HOSPITAL.

EXHIBIT P6 TRUE COPY OF THE AADHAR CARD OF THE 9TH RESPONDENT WHICH WERE PRODUCED ALONG WITH EXHIBIT P4 APPLICATION BY THE 9TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE MARRIAGE CERTIFICATE WHICH WERE PRODUCED ALONG WITH EXHIBIT P4 APPLICATION BY THE 9TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 05.08.2016 PREFERRED BY THE PETITION TO THE 8TH RESPONDENT MUNICIPALITY.

EXHIBIT P9 TRUE COPY OF THE REPLY DATED 10.08.2016 ISSUED BY THE 8TH RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 6.6.2019 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT CHIEF REGISTRAR.

EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED 20.08.2019 ISSUED FROM THE OFFICE OF THE MINISTER OF LSGD.

EXHIBIT P12 TRUE COPY OF THE COMMUNICATION DATE 27-06-

2019 ISSUED BY THE 2ND RESPONDENT TO THE 8TH RESPONDENT

EXHIBIT P13 TRUE COPY OF THE REPLY DATED 12-07-2019 WP(C).No.9721 OF 2020(M)

PREFERRED BY THE 8TH RESPONDENT TO THE 2ND RESPONDENT

EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED 03.08.2019 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DEPUTY DIRECTOR.

EXHIBIT P15 TRUE COPY OF THE FILE NOTES IN EXHIBIT P10 COMPLAINT OBTAINED UNDER THE RTI ACT FROM THE 2ND RESPONDENT OFFICE.

EXHIBIT P16 TRUE COPY OF THE COMMUNICATION DATED 1.10.2019 BY THE 3RD RESPONDENT DEPUTY DIRECTOR OF PANCHAYATH.

EXHIBIT P17 TRUE COPY OF THE COMMUNICATION DATED 25.10.2019 OF THE 2ND RESPONDENT TO THE 5TH RESPONDENT.

EXHIBIT P18 TRUE COPY OF THE COMMUNICATION DATED 11.11.2019 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P19 TRUE COPY OF THE COMMUNICATION DATED21.01.2020 OF THE 7TH RESPONDENT TO THE 5TH RESPONDENT DIRECTOR OF URBAN AFFAIRS.

EXHIBIT P20 TRUE COPY OF THE COMMUNICATION DATED 1.2.2020 OF THE 5TH RESPONDENT DIRECTOR OT THE 2ND RESPONDENT CHIEF REGISTRAR.

EXHIBIT P21 TRUE COPY OF THE COMMUNICATION DATED 4.3.2020 OF THE 2ND RESPONDENT.

EXHIBIT P22 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE VICAR OF EPARCHY OF PALAI

EXHIBIT P23 TRUE COPY OF THE BIRTH CERTIFICATE IN THE

7.10.2020 FOR THE OFFICIAL WEBSITE OF THE 9TH RESPONDENT

EXHIBIT P24 TRUE COPY OF THE COMMUNICATION DATED 6.7.2020 ISSUED BY THE 7TH RESPONDENT

RESPONDENT'S/S EXHIBITS:

EXHIBIT R5(a): TRUE COPY OF THE CIRCULAR NO.B1-4356/15 DATED 07/02/2015.

//TRUE COPY// PA TO JUDGE