Gujarat High Court
Shruti Yashpal Sinh Tomar In Her ... vs State Of Gujarat on 18 July, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/4086/2022 ORDER DATED: 18/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4086 of 2022
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SHRUTI YASHPAL SINH TOMAR IN HER CAPACITY AS MOTHER
OF MINOR KRISHV TOMAR
Versus
STATE OF GUJARAT
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Appearance:
MR VISHAL B MEHTA(5319) for the Petitioner(s) No. 1
MR. NIRAJ SHARMA, AGP for the Respondent(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 18/07/2023
ORAL ORDER
1. Draft Amendment dated 18.07.2023 is taken on record. The same is allowed and directed to be carried-out forthwith.
2. Heard Ms. Megha Dave, learned advocate for Mr. Vishal B. Mehta, learned advocate appearing for the petitioner, Mr. Niraj Sharma, learned Assistant Government Pleader appearing for the respondent-State and Mr. Rituraj M. Meena, learned advocate appearing for the respondent no.2. Page 1 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023
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3. By way of the present petition, the petitioner herein has prayed for correction in the father's name in the birth certificate issued by the concerned authority in the name of Krishiv, child born to the present petitioner on 23.09.2019, copy of the certificate issued in the name of petitioner's child dated 27.09.2019, duly produced at Annexure-A.
4. Briefly stated that, the present petitioner had solemnized her marriage with one Shri Devang Rajendrakumar Trivedi on 08.03.2013 at Shertha, Dist.: Gandhinagar as per Hindu rites and rituals. Out of the said wedlock, daughter, viz. Urvi was born to the present petitioner. The custody of the child was agreed to be kept with the present petitioner and hence the couple had decided to reside separately. In view of above, the parties had jointly applied for divorce by mutual consent as per Section 13(B) of the Hindu Marriage Act, 1955. The said judgment dated 16.02.2019 passed by the 5 th Additional Senior Civil Judge, Gandhinagar in HMP No. 86 of 2018 is duly produced at Annexure-B. Page 2 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023 NEUTRAL CITATION C/SCA/4086/2022 ORDER DATED: 18/07/2023 undefined
5. The petitioner herein gave birth to a son, viz. Krishiv, on 23.09.2019 in Sunflower Woman Hospital at Ahmedabad. On account of mistake, the name of father of the child was erroneously mentioned as 'Yashpalsinh Tomar'. The petitioner herein being divorced lady wants to mention only her name in the birth certificate dated 27.09.2019 issued by the Registrar of Births, Ahmedabad. The child of the petitioner is 3 years old and the petitioner herein is seeking to replace the name of the father i.e. Yashpalsinh Tomar and instead the name of the present petitioner be mentioned.
6. Ms. Dave, learned advocate appearing for the petitioner submitted that petitioner herein has taken divorced from her husband. In the birth certificate of minor son, the name of minor Krishiv's grandfather name i.e. petitioner herein's father name is erroneously mentioned in the birth certificate in the column of father name. In view thereof, the petitioner herein has preferred the application dated 18.01.2022 to the respondent no.2, duly produced at Annexure-C, the same has not been considered and decided by the respondent authority. Hence, the Page 3 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023 NEUTRAL CITATION C/SCA/4086/2022 ORDER DATED: 18/07/2023 undefined present petitioner approached this Court praying for the following reliefs:
"A. Your Lordship may be pleased to issue a writ of mandamus and / or writ or certiorari and / or appropriate writ in any nature by directing the respondent authority to carry out the correction in the name of father's name in the birth certificate issued by the respondent no.2, and further be pleased to replace the name of the father in the interest of justice.
B. Your Lordship may be pleased to grant any other and further relief as may be deemed fit and proper in the facts of the present case."
7. Mr. Rituraj M. Meena, learned advocate appearing for the respondent no.2 authority submitted that appropriate orders be passed by this Court and the respondent authority would abide by the same.
8. Considering the averments made in the petition and the submissions advanced by the learned advocates appearing for the respective parties, the application preferred by the present petitioner to the respondent no.2 dated 18.01.2022 (Annexure-C) that the name of the petitioner herein be incorporated in the birth certificate of minor son, the said application has not been considered / decided by the respondent no.2 authority. Page 4 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023
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9. At this stage, it is apposite to refer to Section 15 of the Registration of Birth and Deaths Act, 1969 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."
9.1. Rule 11 of the Gujarat Registration of Births and Death Rules, 2004, reads thus :-
"Rule 11. Correction or cancellation of entry in the register of births and deaths : (1) If it is reported to the Registrar that a clerical or formal, error has been made in the register, or if such error is otherwise noticed by him and if the Register is in her possession, the Registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in section 15 of the Act and shall send an extract of the entry showing the error and how it has been corrected to the District Registrar of Births and Deaths.
(2) In the case referred to in subrule (1) if the register is not in the possession, the Registrar, he/she shall make a report to the District Registrar of Births and Deaths and call for the relevant register and after inquiring into the matter, if he is satisfied that any such error has been made, make the necessary correction.
(3) Any such correction as mentioned in sub rule (2) shall be countersigned by the District Registrar of Births and Deaths when the register is received from the Registrar. (4) If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may Page 5 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023 NEUTRAL CITATION C/SCA/4086/2022 ORDER DATED: 18/07/2023 undefined correct the entry in the manner prescribed under section 15 of the Act upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case. (5) Notwithstanding anything contained in sub rule (1) and sub rule (4), the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the District Registrar of Births and Deaths. (6) If it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or improperly, he shall make a report giving necessary details to the officer authorized by the Chief Registrar by general or special order in this behalf under section 25 of the Act and on hearing from him take necessary action in the matter.
(7) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under section 8 or section 9 of the Act.... "
10. At this stage, it is apposite to refer to the decisions rendered by the Hon'ble Court in the case of Registrar, Births- Death Department v/s. State of Gujarat & Anr. reported in AIR 2014 (Guj.) 112. The said decision has been followed in the order dated 15.10.2014 passed by this Court in Special Civil Application No. 12924 of 2015 (duly produced at Annexure-D). The relevant para of the said decision reads thus:
"5. Learned counsel for the petitioner has relied upon the judgment of the Division Bench of this Court rendered in the case of Registrar, Births-Death Department Vs. State of Gujarat & Anr. [AIR 2014 (Guj.) 112], contended that as a biological mother, the petitioner has right to put her name after the name of her minor Page 6 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023 NEUTRAL CITATION C/SCA/4086/2022 ORDER DATED: 18/07/2023 undefined daughter and in view of the fact that the petitioner is a single parent, who has taken a divorce by Consent Decree passed by learned Family Court. The petitioner has right to even change of her surname. This Court while considering similar aspect, whereby the correction of entry in the birth certificate was prayed. In similar situation, as relied upon by learned counsel for the petitioner, the Division Bench of this Court has observed thus: -
"4.Heard. We have gone through the record and it appears that the authorities are relocating the parties from one Court to another Court so as to get her self proclaim as Guardian when it is proved and that she is the mother of the child-Om. The learned Single Judge after referring the catena of the decisions passed the direction. By issuing a mandamus, a communication dated 30.8.2012 has been rightly quashed. At page-19, the death certificate of her husband-Naresh Kumar, who passed away on 2.12.2011 is already there. Despite that Dr.A.A.Begad, Registrar, Birth-Death Section, Ahmedabad Municipal Corporation has taken a very fancy stand that they were not under the provision of the Act for correcting the same. 5. On the contrary, he should have taken a practical approach and ought to have done the needful. He has relied on the opinion of the Deputy Chief Registrar (Birth-Death-Marriage) and Additional Director (Statistics), Gandhinagar and has now felt aggrieved the order passed by this Court. The mandamus issued by this Court is not required to be interfered by us. 6. In the result, the appeal fails and is accordingly dismissed. The appellants are directed to do the needful at the earliest within a period of three weeks, failing which the respondents shall be entitled to take all steps available, even under the Contempt of Courts Act."
6. In light of the aforesaid, it appears that the decision taken by the respondent authority is erroneous and the same deserves to be quashed as prayed for. Considering the fact that the petitioner is a single parent, keeping in mind the ratio laid down by Division Bench of this Court in the case of Registrar, Births-Death Department (supra), the respondent authority cannot deny publication of change the Page 7 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023 NEUTRAL CITATION C/SCA/4086/2022 ORDER DATED: 18/07/2023 undefined name from "Rashi Yogesh Sadariya" to "Rashi Prachi Trivedi". The petitioner being a single parent and biological natural guardian, has right to put her name after the name of her minor daughter, more particularly under the circumstances, which arisen in the present petition, wherein biological parents have separated by mutual consent divorce and the mother as biological single parent has taken all liabilities for maintaining her minor girl child.
7. Considering the peculiar facts and circumstances of the case, the petition is allowed...."
10.1. At this stage, it is apposite to refer to order passed by the Division Bench of this Court in LPA No.185 of 2023, paragraphs No. 5 and 6 of the said order reads thus:
"5. As noted above, learned Single Judge was satisfied, more particularly having regard to the authenticate documents such as Pan Card, School Leaving Certificate and Aadhar Card, which showed the date of birth of the petitioner to issue the direction in exercise of powers under Article 226 of the Constitution. They were the documents which could form valid basis of correcting the date of birth as recorded in these documents, which included School Leaving Certificate.
5.1 Even otherwise, the provisions of section 15 of the Act permits the correction. It says that if it is proved to the satisfaction that the entry in the birth or death register is erroneous and required to be corrected, the error could be corrected.
5.2 When the statutory provision permitted such correction and learned Single Judge found on merits that such correction was justified, no submission at the end of Registrar of Birth and Death could hold good.
5.3 It was contended that the petitioner approached with the prayer to correct the date of birth after 19 years. Not only that, the learned Single Judge has taken into account the said aspect and it was on the basis of the authenticate documents, the Page 8 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023 NEUTRAL CITATION C/SCA/4086/2022 ORDER DATED: 18/07/2023 undefined correction was permitted. The petitioner was entitled to seek such correction even after passage of time.
6. While the order passed by the learned Single Judge could be said to be eminently proper and legal, when the Registrar of Birth and Death has chosen to challenge the said order, this Court prima facie finds that it is extremely doubtful whether the authority- Registrar of Birth and Death can be said to be party interested."
11. Considering the aforesaid submissions, position of law as referred above and provision of the Act and Rules, the respondent no.2 authority is directed to consider and decide the application dated 18.01.2022 (Annexure-C) preferred by the petitioner herein. The said application be decided by the respondent no.2 authority within a period of four weeks from the date of the receipt of the order.
12. The present petition stands disposed of, with the aforesaid decisions. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 9 of 9 Downloaded on : Sat Sep 16 22:01:44 IST 2023