Delhi High Court
Sunita Sawhney vs Union Of India & Ors on 3 December, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd December, 2015
+ W.P.(C) 10839/2015
SUNITA SAWHNEY ..... Petitioner
Through: Mr. Girish Aggrwal and Mr. Vaibhav
Jain, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms. Monika Arora, Mr. Krishan
Nandan and Mr. Harsh Ahuja, Advs.
for UOI.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition seeks a mandamus to the respondent No.2 Regional
Passport Office (RPO), New Delhi to, on the basis of the Birth Certificate
issued by the respondent No.3 Sub Registrar (Birth & Death), Ambala,
Haryana, correct the date of birth in the Passport issued to the petitioner from
that mentioned of 22nd January, 1961 to that given in the Birth Certificate of
20th June, 1961.
2. The petition came up before this Court first on 24 th November, 2015
when the counsel for the respondents No.1&2 appeared on advance notice
and considering the nature of controversy, need was not felt to issue formal
notice or to call for replies and the counsels were heard and on their request
W.P.(C) No.10839/2015 Page 1 of 21
the hearing adjourned to 2nd December, 2015 and thereafter to today. The
counsels have been heard further. Need for issuing notice to the respondent
No.3 is not felt.
3. It is the case of the petitioner,
(i) that she was born on 20th June, 1961 at her house in Ambala and
no registration of her birth was recorded;
(ii) that the petitioner, on the basis of information received,
considered her date of birth as 22nd June, 1961 but in the Ambala
Cantt records her correct date of birth is 20th June, 1961;
(iii) that the petitioner got issued Passport No.K6487971 valid upto
19th July, 2022 in which also as per information given by her, her date
of birth is mentioned as 22nd June, 1961;
(iv) that the petitioner got issued a Birth Certificate showing her
date of birth as 20th June, 1961;
(v) that the petitioner approached the respondent No.2 RPO, New
Delhi to, on the basis of her Birth Certificate, have her date of birth
corrected but the respondent No.2 RPO put the application of the
petitioner "on hold".
W.P.(C) No.10839/2015 Page 2 of 21
4. The petitioner, along with the petition itself has filed copies of,
(a) order dated 19th October, 2012 of this Court in W.P.(C)
No.6739/2012 titled Nikhil Garg Vs. Union of India where the
Passport Authorities, on the very first date when the petition came up
before the Court, conceded that they will correct the date of birth on
the basis of the Birth Certificate and a direction to the said effect was
issued;
(b) order dated 4th March, 2013 of this Court in W.P.(C)
No.1410/2013 titled Srishti Yadav Vs. Union of India where also the
petition was disposed of on the very first date with a direction to the
Passport Authorities to, after examining the documents submitted,
consider examine the request for issuance of a fresh Passport based on
the Birth Certificate;
(c) order dated 7th July, 2014 of this Court disposing of W.P.(C)
No.4090/2014 titled Akshit Bajaj Vs. Union of India with a direction
to the Passport Authorities to examine the documents submitted by the
petitioner therein for change of date of birth and to, if satisfied, effect
the change in date of birth;
(d) order dated 24th December, 2014 of this Court in W.P.(C)
W.P.(C) No.10839/2015 Page 3 of 21
No.9107/2014 titled Harshita Gupta Vs. Union of India, which
petition was also similarly disposed of.
5. However, since none of the aforesaid orders referred to any Rule or
Regulation for effecting such change in date of birth on the Passport, on 24th
November, 2015, the Rule in this regard was enquired from the counsel for
the respondents No.1&2 and on his request the matter was adjourned.
6. The counsel for the petitioner has today also handed over a copy of the
order dated 4th August, 2009 of this Court in W.P.(C) No.7387/2008 titled
Pushpendra Singh Diwaniyan Vs. Union of India where notice was taken
of Circulars dated 18th April, 2001 and 29th October, 2007 of the Passport
Issuing Authorities (PIAs) with respect to change of date of birth on the
Passport and the petition was disposed of with the direction to the PIAs to
examine the claim of the petitioner therein for change of date of birth.
7. The counsel for the respondents No.1&2 has today handed over in
Court an Office Memorandum (OM) dated 26th November, 2015 issued by
the Ministry of External Affairs laying down the Guidelines with regard to
the change / correction of date of birth entries in the Passport. Since the said
OM does not appear to be in public domain, it is deemed expedient to set out
the same herein below. The same is as under:
W.P.(C) No.10839/2015 Page 4 of 21
"OFFICE MEMORANDUM
Subject:- Guidelines with regard to change/correction of
dates of birth entries in the passport of an applicant already held
by him/her--reg.
It may be mentioned that the necessary provisions with
regard to change/correction of dates of birth in the passports are
contained in the Passports Manual, 2010 and from time to time
number of circulars have been issued by the Ministry on this
issue.
2. It is pertinent to mention that recently, the High Court of
Kerala while hearing the WP No.9073 of 2015 (Jayakumar Vs.
UOI & others) has delivered a land-mark judgment on the issue
of correction/change of entries regarding date/place of birth in
the passport. During the course of arguments, the Court has
elaborated upon the fact that the details entered in the Passport
cannot be lightly interfered with, that too after many years
without any sustainable cause and without any explanation as to
why initially such a wrong declaration was made and why now a
change is sought that too based on a document which was
available with the applicant when the original declaration was
made.
The High Court has further observed that the difference
in dates of birth whether two years or twenty years, the power
should be one to correct bonafide mistake and that too within a
reasonable time. Even a Civil Court declaration after many
number of years would lead to the applicant having possibly
perpetrated a fraud on many other who acted upon the
authenticated declaration of sovereign state as to the age status
of its Citizen.
3. The Court, therefore, while dismissing the petition of the
applicant petitioner has directed that the authorities would do
well to introspect on the observation made herein to make
suitable amendments to the circular. It has also been directed
that there would be no scope for leaving any liberty on the
W.P.(C) No.10839/2015 Page 5 of 21
petitioners to approach a Civil Court too on the reasoning
adopted by this Court and the delay occasioned in seeking the
correction.
4. Hence, the core principle of the judgment of the High
Court of Kerala is that only the bonafide claims of the applicants
for the change/correction of the date of birth in the passport
should be accepted and that too if the same are submitted by
them within a reasonable time limit after the issuance of
passport. In pursuance of the directions of the High Court, it has
been decided that henceforth, all the PIA shall follow the
following instructions/guidelines in order to consider the
claims/request the applicant for the change/correction of entries
regarding of date of birth in their passports.
(i) Where an applicant claims clerical/technical mistake in
the entry relating to birth/place of birth in the passport
and asks for rectification/correction:
In all such cases, the documents produced earlier
as proof of date of birth/place of birth at the time of issue
of passport may be perused (if not already destroyed) by
PIA. In case, it is a clerical mistake either by the
applicant or the PIA, date/place of birth correction may
be allowed by issue of fresh booklet; in the former case
by charging fee for fresh passport and in the latter
'gratis' (same as mentioned in Ministry's Circular
No.VI/401/2/5/2001, dated 29/10/2007).
(ii) If an applicant applies for the change of date of birth in
the passport within a reasonable period of time i.e.
within a span of five (5) years from the date of issue of
passport having the alleged wrong date of birth, with the
birth certificate issued by the Registrar of Births &
Deaths stating that the date of birth recorded in the
passport was based on the entries mentioned documents
other than the Birth Certificate, the request of such an
applicant irrespective of the difference in the dates of
birth, may be considered by the Passport Issuing
Authority. However, before issuance of passport with
changed date of birth, the Passport Authority shall also
W.P.(C) No.10839/2015 Page 6 of 21
levy appropriate penalty on the applicant for obtaining
passport on previous occasion by providing wrong
information regarding his/her date of birth.
(iii) The cases where the applicant comes to PIA for
change/correction with regard to date of birth in the
Passport after a period of five years from the date of
issue of passport with alleged wrong date of birth, no
such request shall be entertained/accepted by the PIA
and be rejected out rightly.
However, an exemption in this regard may be
given to an applicant who was minor at the time when
passport with alleged wrong date of birth was issued to
him. As and when such an applicant after attaining the
age of majority applies for the passport with the request
to change the date of birth in the passport issued to him
when he was minor, the PIA irrespective of the duration
of the issuance of passport may accept his case for
consideration and if is satisfied with the claim and
document(s) submitted by the applicant, may accept his
request for change of date of birth in the passport without
imposition of any penalty.
(iv) In no way, the Passport Authority will relegate the
applicant to obtain the declaratory court order to carry
out changes with regard to date of birth in the passport,
as the Passport Authority subject to the condition that the
case has been submitted by the applicant within the
stipulated limit of 5 years from the date of issuance of
passport (except the cases of minor passport holder as
detailed in para 5(ii) above) would now be eligible to
accept the genuine cases irrespective of the difference of
dates of birth.
5. In view of the above, all the Passport Issuing Authorities
are hereby requested to follow the above guidelines scrupulously
to consider the requests of applicants for change/correction of
dates of birth entries in the passports. Provisions contained in
Chapter '4 and 8' of the Passport Manual, 2010 stand revised to
the extent as stipulated above."
W.P.(C) No.10839/2015 Page 7 of 21
8. The counsel for the respondents No.1&2 has also handed over a copy
of the judgment dated 23rd June, 2015 of the High Court of Kerala in
W.P.(C) No.9073/2015 titled Jayakumar Vs. The Regional Passport Officer
referred to in the aforesaid OM.
9. The Passport presently held by the petitioner, showing her date of
birth as 22nd June, 1961, was issued on 20th July, 2012 and the petitioner
claims to have approached the Passport Authorities for change of her date of
birth therein and / or for issuance of a new Passport showing her date of birth
as 20th June, 1961 prior to the filing of this petition i.e. within the period of
five years. Thus, as per the aforesaid OM dated 26 th November, 2015 also,
the respondents are required to examine the case of the petitioner under
Clause 4(ii) thereof and to if satisfied, effect the change. It appears that the
request of the petitioner was not considered awaiting the issuance of the OM
supra.
10. However, rather than disposing of this petition with the said direction
alone, it is deemed appropriate to record my own observations on the subject
for consideration of the respondents.
11. The Parliament has enacted the Registration of Births and Deaths Act,
1969 to provide for the regulation of registration of births and deaths and for
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matters connected therewith. Section 8 thereof imposes a duty on the head
of the household and / or on the medical officer in charge of the hospital,
health centre, maternity or nursing home and / or on the jailer in charge and /
or on the person in charge of any boarding-house, lodging-house etc. and / or
on the local police to lodge information of the births and deaths respectively
in the house or hospital or health centre or maternity or nursing home or jail
or boarding-house or lodge-house etc. or in a public place. Section 10
thereof also imposes a duty on the midwife or any other medical or health
attendant at a birth or death to notify every birth or death to the Registrar
constituted under the said Act. Sections 11 & 12 of the Act require for a
register to be kept of such births and deaths and of furnishing of extract
thereof. Rules framed under the Act provide the time within which the birth
/ death has to be so got registered. Delhi Registration of Births 7 Deaths
Rules, 1999 provide a time of twenty one days. Section 13 of the Act
provides for delayed registration of births and deaths, after the period
prescribed therefor, (i) within thirty days, on payment of late fee; (ii) within
a period of one year, with the written permission of prescribed authority and
on payment of prescribed fee and production of affidavit; and, (iii) after a
delay of more than one year, after an enquiry in that regard by the Magistrate
W.P.(C) No.10839/2015 Page 9 of 21
of the First Class or the Presidency Magistrate, as the case may be. Section
15 provides for the correction of the entry in the aforesaid register. Section
23 of the said Act provides for penalties for non-compliance with the
provisions thereof. Section 26 constitutes the Registrars under the said Act
to be public servants within the meaning of Section 21 of the Indian Penal
Code, 1860.
12. Section 74 of the Indian Evidence Act, 1872 prescribes that
documents forming the acts or records of the acts of the sovereign authority,
official bodies and tribunals and of public officers, legislative, judicial and
executive of India and public records kept of private documents, are public
documents. As distinct therefrom, all other documents, under Section 75 are
private documents. The difference between public and private documents in
the matter of evidence is in the matter of proof thereof. The public officer
having the custody of public documents are by Section 76 of the Evidence
Act required to, on demand, furnish certified copy thereof and Section 77
provides that such certified copies may be produced in proof of the contents
of the public documents of which they purport to be certified copies. As
distinct therefrom, the private documents have to be proved by producing
originals thereof.
W.P.(C) No.10839/2015 Page 10 of 21
13. My legal research as to the status of the Register of Birth & Death
maintained under the Act supra and the Certificates of Birth & Death issued
of extracts thereof shows that:
(A) A Division Bench of the High Court of Punjab & Haryana in
Bansi Ram Naru Ram Vs. Jit Ram Gehru Ram
MANU/PH/0269/1963 held that as against the evidence as to age in
birth registers, the entry in school records is considered to be of
inferior quality; the entry in birth register was held to be much more
contemporaneous than the entry in school register and therefore more
reliable and inspiring greater confidence.
(B). The High Court of Karnataka in Vanajakshamma Vs. P.
Gopala Krishna AIR 1970 Mys. 305 held that the extract of a birth
register maintained under the Act is a public document to be read in
evidence.
(C) Supreme Court in Harpal Singh Vs. State of Himachal
Pradesh (1981) 1 SCC 560 held that since the entry in a birth and
death register is made by concerned official in discharge of his official
duties, it is admissible in evidence and it is not necessary to examine
the author thereof.
W.P.(C) No.10839/2015 Page 11 of 21
(D) The High Court of Karnataka in Khatalsaheb Wd. Khadirsaheb
Inamdar Vs. Ameersaheb MANU/KA/0317/1994, on consideration of
a plethora of case law, concluded that an entry in a birth and death
register is admissible in evidence to show that a particular person by
that name mentioned in the certificate was born or dead on that
particular day, though cannot be evidence of paternity of a person
mentioned there, because it is not the duty of the Registrar under the
said Act to make any enquiry with respect to the entry as to paternity.
It was further held that the certificate under the Act cannot be used for
any purpose other than to prove the date of birth or death.
(E). A Division Bench of the High Court of Bombay in Shri
Joaquim Constantinho Carvalho Vs. State MANU/MH/0552/1995
held that for determination of the age of a prosecutrix in a case of rape,
a birth certificate issued by the Municipal Council being a public
record is to be presumed to be authentic and correct and is to prevail
upon the birth certificate issued by the Church.
(F) This Court in Km. Para Vs. Director, Central Board of
Secondary Education 111 (2004) DLT 573 held that to resolve a
conflict between the dates of birth, the document which has been
W.P.(C) No.10839/2015 Page 12 of 21
issued under the Registration of Births and Deaths Act has to be given
effect to.
(G) Supreme Court in Ravinder Singh Gorkhi Vs. State of U.P.
(2006) 5 SCC 584 held that entries in births and deaths register made
by a public servant in discharge of official duty are relevant and
admissible in evidence.
(H). The High Court of Orissa in Siba Prasad Jena Vs. Puspanjali
Jena MANU/OR/0584/2007 held a birth certificate issued under the
Act aforesaid to be a public document admissible in evidence, without
requiring any further proof thereof.
(I) A Division Bench of the High Court of Punjab & Haryana in
Resham Singh Vs. Union of India MANU/PH/0664/2007 held that a
date of birth in the Passport entered on the basis of Matriculation
Certificate is liable to be corrected on the basis of the date of birth in
the birth certificate as primacy has to be accorded to date of birth
reflected in birth certificate. It was further observed that the PIAs had
misunderstood legal nature of a birth certificate issued under the
aforesaid Act and had erred in rejecting the application for correction
of the date of birth on the Passport.
W.P.(C) No.10839/2015 Page 13 of 21
(J) The High Court of Bombay in Jayant Gopalrao Pachade Vs.
Motilal Kuber Kanoje MANU/MH/0960/2008, relying on Gopi
Chand Arya Vs. Sm. Bedamo Kuer AIR 1966 SC 231, held that a
birth / death certificate being an entry made by a public servant in the
ordinary course of his public duty and which entry is a public
document, must have a presumption of correctness attached to it. It
was further held that an entry in a birth or death register is conclusive
evidence, unless disproved.
(K) The High Court of Gujarat in Arpanaben Krunal Shah Vs.
Regional Passport Office MANU/GJ/0581/2008 held that as per the
scheme of the Act aforesaid, entries in the register of birth and death
are to be considered as correct, unless any declaration is otherwise of a
competent Civil Court. It was further held that the PIAs when
approached for correction of date of birth on the Passport are to
normally treat the entries in the birth register as valid for the purpose
of correction in Passport already issued and particularly, as against
evidence of School Leaving Certificate weightage deserves to be given
to the certificate of birth. It was further held that the Passport
Authority can make correction in the Passport already issued, if
W.P.(C) No.10839/2015 Page 14 of 21
genuine and proper circumstances are placed before it. A direction
was accordingly issued for correction of date of birth in the Passport
already issued to bring it in consonance of date of birth in the birth
certificate.
(L) Supreme Court in CIDCO Vs. Vasudha Gorakhnath
Mandevlekar (2009) 7 SCC 283 held that entry in a birth register
prevails over an entry in school register. It was further held that
entries in a birth and death register raise a presumption of correctness.
(M) The High Court of Orissa in Bikram Ray Vs. Smt. Jema
Hembram MANU/OR/0007/2010 held that a certificate of birth issued
under the aforesaid Act is a public document admissible in evidence
and it is not necessary to prove who made the entries and what was the
source of information. It was held that the register maintained under
the said Act being a public document, presumption of correctness
attaches to it.
(N) The High Court of Punjab & Haryana in Surender Vs. State of
Haryana MANU/PH/2144/2011 held that the certified copy of birth
certificate is admissible in evidence without any further proof.
(O) This Court in Abbas Hussain @ Munim Vs. Govt. of NCT of
W.P.(C) No.10839/2015 Page 15 of 21
Delhi MANU/DE/4138/2012 held that the object of introduction of
registration of births and deaths vide the Act supra is to give legal
status to the official machinery for registration of births and deaths.
(P) The High Court of Punjab & Haryana again in Ms. Seerat
Khara Vs. Central Board of Secondary Education
MANU/PH/0917/2013 held that birth certificate being a public
document is presumed to be genuine in terms of Sections 79 & 80 of
the Evidence Act.
(Q) Supreme Court recently in Iswarlal Mohanlal Thakkar Vs.
Paschim Gujarat Vij Co. Ltd. (2014) 6 SCC 434 held that the High
Court had committed a grave miscarriage of justice by not accepting
the birth certificate as conclusive proof of age, the same being an entry
in the public record.
(R) A Division Bench of the High Court of Punjab & Haryana
recently in Ambika Kaul Vs. Central Board of Secondary Education
MANU/PH/1050/2015 held that the Registration of Births and Deaths
Act was enacted with an object to have adequate and accurate country
wide data for registration of births and deaths in the country and the
said Act gives statutory recognition to the birth certificates and carries
W.P.(C) No.10839/2015 Page 16 of 21
a presumption of correctness.
14. The petitioner, along with the petition has filed the Birth Certificate
issued under the Registration of Births and Deaths Act by the Cantonment
Board, Ambala Cantt showing her date of birth as 20 th June, 1961 and the
date of registration of such birth as 7th July, 1961. In the face of the said
document, the plea in the petition, of no registration of birth of petitioner
having been recorded is obviously incorrect. The fact that the petitioner
applied for and obtained, extract of the register under the Act aforesaid
recording her birth, on 29th September, 2015, being the date on which the
Birth Certificate was issued, does not take away from the factum of the birth
of the petitioner having been registered in accordance with Act aforesaid.
The petitioner has also not stated as to under what circumstances, she at the
time of having her old Passport issued on 30th December, 1998 gave her date
of birth as 22nd June, 1961 and what documents she then submitted in proof
of her date of birth or why she did not earlier apply for and obtain her Birth
Certificate. I clarify, that the registration of birth of the petitioner is not
under Section 13 providing for delayed registration. The same date of birth
continued in the fresh Passport issued on 20th July, 2012 as aforesaid.
15. The respondents, while considering the request of the petitioner in
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terms of the OM supra, would of course be expected to go into the said
aspects.
16. To me it appears:
(I) That the respondents, at the time of issuance of Passport and for
recording date of birth therein, should insist upon the applicant
producing the Birth Certificate and only if the applicant states that
his/her birth was not registered under the law aforesaid should other
proof of date of birth be accepted. Ordinarily, the applicant should be
asked to resort to delayed registration procedure under Section 13
supra.
(II) That in the event of the applicant, at the time of issuance of
Passport states that his/her birth was not registered and subsequently,
while seeking correction of date of birth, producing (a) a Birth
Certificate showing registration at time of birth or soon thereafter, the
respondents, if satisfied of reasons given for being earlier ignorant of
registration; or (b) a Birth Certificate obtained under the delayed
registration procedure, the respondents should correct the date of birth
on the Passport to bring it in consonance with the date of birth on the
Birth Certificate.
W.P.(C) No.10839/2015 Page 18 of 21
(III) No application for change of date of birth on Passport,
inconsistent with date of birth on Birth Certificate can be entertained.
The applicant in such case should be directed to resort to procedure
under Section 15 of Registration of Births & Deaths Act for correction
thereof.
(IV) In no case can the respondents refuse to correct date of birth,
after howsoever time the same may have been sought.
17. I say so because (a) Passport is an important document on which and
on entries wherein a large number of other authorities/persons dealing with
the holder of Passport rely; (b) once birth is compulsorily required to be
registered under the law aforesaid, there is no reason why PIAs should not
insist on production of Birth Certificate for making entry of date of birth on
the Passport specially when the law also makes a provision for delayed
registration; (c) however where, in the past, Passport has been issued with
date of birth on basis other than Birth Certificate, correction of date of birth
should be allowed only on production of Birth Certificate by following the
delayed registration procedure, again in consonance with the law aforesaid;
(d) the same will also fulfil the aim of the law aforesaid of accurate country
wide data and not having a citizen whose birth is not registered in
W.P.(C) No.10839/2015 Page 19 of 21
accordance with law of the country; (e) when the law aforesaid provides for
enquiry by Magistrate as to the date of birth of a person whose birth was not
contemporaneously registered, there appears to be no need for PIA to make
own enquiry in this regard or to insist on obtaining declaration of Civil Court
in that regard; (f) once a Birth Certificate is produced and the PIA is satisfied
of genuineness thereof, correction of date of birth to bring it in consonance
with Birth Certificate cannot be refused, whatsoever may be in delay in
applying therefor; (g) inconsistent dates of birth can cause grave prejudice to
the citizen and for which there is no sanction in law; (h) there can be diverse
reasons for delay--for instance need for change in date of birth in Passport
to bring it in consonance with Birth Certificate may be felt at fag end of life
when the holder of Passport intends to migrate to be with children abroad
and when such inconsistency is found to be an impediment; (i) the judgments
aforesaid having given primacy, in the matter of date of birth, to the Birth
Certificate, there is no reason to refuse to correct the date of birth on
Passport on production of Birth Certificate.
18. I am also of the opinion that whenever a change of date of birth on
Passport is effected, it should be so visible so that other persons dealing with
holder of Passport, on basis of Passport, are also aware of such change
W.P.(C) No.10839/2015 Page 20 of 21
having been effected with effect from a particular date.
19. I however add that this petition, not concerned with other issues, the
observations thereon can by no means be conclusive. However, since this
Court is inundated with such petitions, need was felt to deal with the subject
comprehensively for consideration of authorities concerned and with a view
to curtail litigation.
20. The petition thus succeeds. The Passport Issuing Authority concerned
is directed to, on or before end of February, 2016, consider the request of the
petitioner for change of date of birth in her Passport and to, if satisfied, either
correct the date of birth, either on the existing Passport or by issuing a new
Passport and if of the view that the petitioner is not entitled to such change,
to give detailed reasons therefor.
Needless to state the petitioner if remains aggrieved to have the
remedy in law.
No costs.
RAJIV SAHAI ENDLAW, J.
DECEMBER 03, 2015 bs (corrected & released on 7th January, 2016) W.P.(C) No.10839/2015 Page 21 of 21