Madras High Court
V.Kaliammal vs The Tahsildar on 2 March, 2023
W.P.(MD)No.20096 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :02.03.2023
CORAM
THE HONOURABLE MR.JUSTICE K. KUMARESH BABU
W.P.(MD).No.20096 of 2015
and
M.P.(MD).No.1 of 2015
V.Kaliammal ... Petitioner
Vs.
1.The Tahsildar,
Sattur Taluk,
Virudhunagar District.
2.G.Ganapathiammal
3.K.Vellaithai ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, calling for the
records pertaining to the impugned orders passed by the learned Judicial
Magistrate No.1 Sattur dated 22.04.2015 passed in Crl.M.P.No.288 of 2015
and consequential order of issuance of the Date of Birth in favour of the
third respondent by the first respondent dated 13.05.2015 and quash the
same as illegal and consequently direct the first respondent to delete the
date of birth entry of the third respondent as 08.03.1971 in the Birth
Register maintained by the first respondent.
Page 1 of 8
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W.P.(MD)No.20096 of 2015
For Petitioner :Mr.J.Lawrance1
For Respondents :Mr.D.Farjana Ghoushia
Special Government Pleader for R1
ORDER
The prayer in the writ petition is challenging the order passed by
the Judicial Magistrate No.1, Sattur, in Crl.M.P.No.288 of 2015 dated
22.04.2015 and consequently to delete the birth entry and consequently,
quash the birth certificate issued by the first respondent in favour of the
third respondent.
2. The case of the petitioner is that the third respondent herein had
originally filed a suit in O.S.No.29 of 2011 on the file of the District
Munsif, Sattur, seeking for a declaration that he is the legal heir of one
Vellaichamy and for other reliefs. The learned District Munsif, by a detailed
judgment and decree have rejected the claim of the petitioner having found
that he is not the legal heir of the said deceased Vellaichamy. The said suit
was decreed on 25.08.2014. Learned counsel for the petitioner would
further submit that suppressing the judgment and decree, the third
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W.P.(MD)No.20096 of 2015
respondent had approached the Judicial Magistrate No.1, Sattur, by filing a
Miscellaneous Petition in Crl.M.P.No.288 of 2015 to issue a birth certificate
in his name, indicating that the said Vellaichamy is his father and the
petitioner is his mother. While filing the application, the third respondent
had indicated that along with the said application, an affidavit of the second
respondent had been filed, wherein a specific averment has been made that
the petitioner was no more. The learned Judicial Magistrate, based upon the
said application, without issuing any proper notice, but, simply by relying
upon the paper publication issued by the third respondent had directed the
issuance of a birth certificate in favour of the third respondent. She would
submit that the said birth certificate is contrary to the judgment and decree
made by the civil Court in O.S.No.29 of 2011. Further case of the petitioner
is that the third respondent was born to the petitioner through her first
husband Alagar Samy, whereas, Vellaichamy Goundar is the second husband
of the petitioner. Hence, she would submit that the order impugned in this
writ petition will have to be set aside.
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W.P.(MD)No.20096 of 2015
3. The learned counsel appearing for the third respondent would
submit that since the third respondent had married against the wishes of her
parents, namely, the petitioner and her husband. The petitioner is trying to
throw out all attempts of the third respondent to obtain a birth certificate. He
would further submit that the application of the petitioner was supported by
an affidavit filed by the second respondent, who is the sister of the
petitioner. He would further submit that only after due enquiry, the learned
Judicial Magistrate had passed the order impugned in this writ petition.
4. Learned Special Government Pleader, on instructions, would
submit that the third respondent is the child of the petitioner and one
Alagarsamy, who was the first husband of the petitioner. Further, as per the
enquiry made in the said village, it was found that the actual date of birth of
the third respondent is 10.02.1970 and not 08.03.1971 as claimed by the
third respondent.
5. I have heard the rival submissions made on either side.
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W.P.(MD)No.20096 of 2015
6. Originally, a suit seems to have been filed by the third
respondent seeking for various reliefs including a declaration to declare that
she is the legal heir of one Vellaichamy Gounder and after full-fledged trial
had been dismissed on 25.08.2014. During the trial, the trial Court had
framed the issue as to whether the third respondent was the daughter of one
Vellaichamy Gounder as claimed by her. While dealing with the said issue,
the competent civil Court had given a specific finding that the petitioner
was not born to Vellaichamy Gounder, but, was born to Alagar Samy. The
said findings of the civil Court have not been challenged by the third
respondent. However, after dismissal of the suit, the third respondent has
moved the Judicial Magistrate No.1, Sattur, seeking for a birth certificate
indicating that she was born on 08.03.1971 to the petitioner as well as the
Vellaichamy Gounder. Having suffered a judgment and decree, on the
contrary, without seeking to file any appeal against the same, she had
approached the Judicial Magistrate No.1, Sattur seeking for such a birth
certificate. It is trite law that the finding in a civil proceedings are binding
upon the criminal Court as this judgment and decree brought to the notice of
the learned Judicial Magistrate No.1, and he would not have issued with the
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W.P.(MD)No.20096 of 2015
certificate. The third respondent in connivance with the second respondent
had misled the Judicial Magistrate No.1, Sattur and had obtained on order
declaring herself to be born on 08.09.1971 to Vellaichamy Gounder and the
petitioner. Unfortunately, the third respondent also seems to have declared
her mother to be dead, while approaching the learned Judicial Magistrate
No.1, Sattur. Hence, without hesitating any further, the order made by the
learned Judicial Magistrate No.1, Sattur, in Crl.MP.No.288 of 2015 dated
22.04.2015 is set aside and consequently, direct the first respondent to
delete the Registration bearing registration No.7 of 2015, dated 13.05.2015
from the Register of Birth and Death maintained by it.
7. In fine, the writ petition is allowed and the impugned order
passed by the Learned Judicial Magistrate No.1, Sattur, in Crl.M.P.No.288
of 2015 is set aside and the direction to the first respondent to delete the
entry of the registration bearing Registration No.7 of 2015, dated
13.05.2015 is set aside and the first respondent is directed to delete the entry
in the registration bearing Registration No.17 of 2015, dated 13.05.2015.
Such direction shall be complied with within a period of three weeks from
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W.P.(MD)No.20096 of 2015
the date of receipt of a copy of this order. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
02.03.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
To
The Tahsildar,
Sattur Taluk,
Virudhunagar District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.20096 of 2015
K.KUMARESH BABU, J.
sbn
W.P.(MD).No.20096 of 2015
and
M.P.(MD).No.1 of 2015
02.03.2023
https://www.mhc.tn.gov.in/judis
