Kerala High Court
Abhilash M.V vs Registrar Of Births And Deaths on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 34172 OF 2022
PETITIONERS:
ABHILASH M.V.
AGED 40 YEARS,
1 S/O MOHANAN, ASHA BHAVAN, G C COLONY, ANDOORKONAM,
AIRUPARA VILLAGE, THIRUVANANTHAPURAM - 695584.
RAJI, W/O ABHILASH, ASHA BHAVAN, G C COLONY,
ANDOORKONAM, AIRUPARA VILLAGE,
2
THIRUVANANTHAPURAM - 695584.
BY ADV,
SHRI P.I.GEORGEKUTTY
RESPONDENTS:
REGISTRAR OF BIRTHS AND DEATHS, OFFICE OF THE
REGISTRAR OF BIRTHS AND DEATHS,
1
CORPORATION OF COCHIN, ERNAKULAM, 682011.
SUPERINTENDENT, M A J HOSPITAL, ERNAKULAM, 682024.
2
RAJAPPAN OF VELANATTUTHARA, EDAYAKUNNAM KARA,
3 CHERANALLOOR, ERNAKULA, 683544.
BY ADV,
SHRI ARUN ANTONY, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 34172 OF 2022
2
MOHAMMED NIAS C.P., J
............................................................
W.P(C) No. 34172 of 2022
.............................................................
Dated this the 28th day May of 2024
JUDGMENT
The petitioners are stated to be the Husband and Wife. Earlier
the 2nd petitioner was married to the 3 rd respondent and two
Children were born to the 2nd petitioner in that association. The
elder child died on 26.03.2007 due to blood cancer, and the 2 nd
petitioner alleges that the 3rd respondent had deserted her after
the death of their child. Thereafter, the 2 nd petitioner and the 1st
petitioner were living together. In that wedlock, a female child
was born on 21.08.2008 at the 2 nd respondent hospital and they
named her 'Devapriya'. The petitioner also produced Ext.P1
petition seeking divorce between the 2 nd petitioner and the 3rd
respondent. By Ext.P6, the court had declared the marriage
between the 2nd petitioner and the 3rd respondent as null and void
under Section 25(ii) and (iii) of the Special Marriage Act, 1954
thus dissolving the marriage solemnized between them on
13.02.2008. The petitioners submitted that they had approached
the 1st respondent for a birth certificate. On further enquiry, it
WP(C) NO. 34172 OF 2022
was found that the 3rd respondent was shown as the father of the
child instead of the 1 st petitioner. The petitioner had preferred
Ext.P3, the application with supporting documents before the 1 st
respondent on 05.05.2014 for correcting that entry as the
petitioners required the birth certificate of Devapriya their child
for educational purposes. They pray to direct the respondents to
make necessary corrections in the birth certificate and the
hospital records.
2. Learned Counsel for the petitioner apart from reiterating
the contentions in the writ petition relied on Section 15 of the
Registration of Births and Deaths Act which confer power on the
1st respondent for correction or cancellation of entries in the
register of birth and deaths.
3. A statement has been filed on behalf of the 1 st respondent
contending that since the child was born during the wedlock
between the 2nd petitioner and the 3rd respondent the father's
name was shown as K. B Rajappan as he was the legally wedded
husband of the 2nd petitioner at the time of Devapriya's birth. The
presumption under the Indian Evidence Act, 1872 is also relied
on. In such cases going by Annexure R1(a) circular dated
16.12.2015, to clarify the paternity of the child, a DNA test is
required and the father's name can be changed only in terms of
WP(C) NO. 34172 OF 2022
the circular.
4. Heard Sri. P.I Georgekutty, learned Counsel appearing
for the petitioner and Sri.Arun Antony, learned Standing Counsel
appearing for the respondent.
5. Exhibit P1 petition was filed by the 3 rd respondent herein
who alleged adultery by impleading the 1st petitioner herein and
the cause of action alleged in the same which is extracted
hereunder.
" The cause of action for petition arose on 13.02.2008
from the date of marriage and on 21.08.2008, the date on
which the illegitimate child born to the 1st respondent and
on 10.11.2008, the date on which the petitioner came to
know that the 1st respondent is living with the 2nd
respondent along with their child and thereafter at
Cheranallur, a place the parties last resided together, which
is within the jurisdiction of this Hon'ble Court."
6. Given the averments made in the Ext.P1 petition and the
orders passed thereon and when nothing is brought on record to
disbelieve the case of the petitioners that they are the parents of
Devapriya, I do not think that the petitioners should be made to
undergo a DNA Test as per the circular above said, for the
change of name of the parent. There is no contest to the claims of
WP(C) NO. 34172 OF 2022
the petitioners and Devipriya was all along living with the
petitioners.
7. In the facts obtaining in the case, Section 15 of the
Registration of Births and Deaths Act, 1969 as well as Rule 11(2)
of the Kerala Registration of Births and Deaths Rules, 1999,
dealing with correction or cancellation of entry in the register of
births and deaths squarely applies.
8. Accordingly the writ petition is allowed. There will be a
direction to the 1st respondent to make suitable corrections in
the entries in the birth register and the birth certificate of the
petitioner's child 'Devapriya' based on the application already
submitted. In case the application is missing, the 1st respondent
shall, at the earliest, direct the petitioners to file a fresh
application and issue a certificate after making the necessary
corrections as aforesaid. This shall be done within 2 weeks from
the date of receipt of a copy of this judgment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
HKH/28.05.2024
WP(C) NO. 34172 OF 2022
APPENDIX OF WP(C) 34172/2022
RESPONDENT ANNEXURES
ANNEXURE R 1
TRUE COPY OF THE CIRCULAR DATED 16 12 2015
(A)
PETITIONER EXHIBITS
CERTIFIED COPY OF JUDGMENT ON O.P. NO. 177 OF
EXHIBIT P6
2009 OF FAMILY COURT, ERNAKULAM DATED 28.08.2009
//TRUE COPY PA TO JUDGE//
