Gujarat High Court
Dr. Sukumar Mehta vs District Registrar, Births And Deaths on 28 August, 1991
Equivalent citations: (1993)1GLR93
JUDGMENT S.D. Shah, J.
1. The petitioner is father of minor child whose birth was registered on 7th August, 1989. At the time of registration in the register kept under the provisions of Registration of Births & Deaths Act, 1969, name of the minor child was stated to be 'SUCHI'. Said child was born on 6th August, 1989 and the birth was registered on 7th August, 1989.
2. Thereafter the parents of the child decided to change the name of the minor female child from 'SUCHI' to 'PRACHF. An application was, therefore, submitted along with affidavit to the District Registrar for effecting the change in the name of the child in the said entry from SUCHI to 'PRACHI'. Along with the said application the original birth certificate was a] also produced. After receiving said application they have failed to pass any order thereon and it is such an inaction on the part of respondent-authorities which is under challenge in this petition.
3. On Rule Nisi being issued by this Court, Mr. D. K. Trivedi, learned G. P. has appeared on behalf of respondents. In his submission, under the provisions of Registration of Births & Deaths Act, 1969, there is no power in the Registrar to correct the entry already made in the Register of Births. In this connection, Mr. Trivedi has invited the attention of this Court to various provisions of the Act, and more particularly, Sees 14 & 15 of the said Act. Section 14 of the said Act deals with registration, of name of a child. When the birth of any child is registered Without any name, parent or guardian of said child shall within the prescribed period give information regarding the name of the child to the Registrar either orally or in writing and thereupon the Registrar shall enter such ram:: in the Register and initial and date the entry. By this provision impliedly the Registrar is authorised to correct the entry already made in the Register by placing name of the child on an application being made by the parent or guardian of said child. This power is, undoubtedly a limited power inasmuch as the first part of Section refers to the contingency when the birth of any child has been registered without name. In such a contingency there is, no doubt, power in the Registrar to enter the name of the child on application being made by the parent or guardian of the child and to accordingly correct the entry in the Birth Register. Section 15 of the said Act deals with correction or cancellation of entry in the Birth Register. However, power given under Section 15 is, once again, limited power. When an entry in a Birth Register is found to be erroneous in form or in substance or has been factually or improperly made, he has been empowered to correct or cancel such an entry. In view of the specification of circumstances where an entry already made can be corrected under Section 15 it cannot be said that the present case would be governed by Section 15. In case where the birth of child has been registered without the name, then name can be inserted in the register on the application of the parent or guardian of the child. The said power can be legitimately extended to the power to correct the name of the child on the application of parent or guardian of the child. If there is power in tile Registrar to enter the name of child subsequently on the request of parent or guardian there is power also in the Registrar to change the name of child at the request of parent or guardian. In my opinion, it is not the case of total absence of power in Registrar and application of the petitioner could have been entertained by the Registrar for change of name of child from "SUCHI" to "PRACHI". It is further required to be noted that the application is given by the parent of the child and the same duly affirmed. There is no other person but to have their own choice and there does not appear to be any earthly reason to object to such application. I, therefore, think that this is a fit case where power ought to have been exercised by the Registrar under See. 14 read with Section 15 by entertaining the application of the petitioner and by correcting the name of the minor female child of the petitioner from that "SUCHI" to "PRACHI".
4. In my opinion, the Act is silent about the contingency for subsequent correction of entry already made in Birth Register by correcting the name of the child at the instance of the parents, i his is the case of unmindful legislative omission. This is classic case of casus omissi, i.e., circumstances concerning which an Act is silent. The question is how to deal with such contingencies ? Should the Court leave the litigant in sheer helpless condition asking him to wait till the legislature curds the defect by providing for the omission ? Can the Court escape the responsibility of considering these unforseen contingencies? However, I cannot ignore the modern tendency in Courts to take the view that if a case is entirely unprovided for by a Statute, either directly or indirectly, then it must remain nobody's child - a luckless orphan of the law (In re Leicester Permanent Building Society, 1942 Ch. 340). Same was the view of Devlin L. J. in Gladstone v. Bower reported in 1960 (2) QB 384 when he observed "we cannot legislate for casus omiss". This tendency has given rise to inconvenient results. One option left for me is to express regrets for a statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. However, in my opinion, in this case there is "impalpable line" of distinction which should enable the Court to come out of helplessness. In this case" the caption of Section 15 gives general indication to give power to correct the entry in the Birth Register. However, specific case of correction of name of the child already entered is omitted to be provided for. When the entry is erroneous, there is power to correct. When it is factually improperly made, there is power of correction. Question is when entry is rightfully made can it be corrected by resort to this power ? In my opinion, once power to correct an entry already made in the Birth Register is conceded, it should legitimately take within its sweep the correction of entries rightfully made. It is the correction of the name of the child at the instance of the parents or wards. What possible objections can there be in reading such power in the authority if power to correct erroneous entry is conceded ? The omission in the present case appears to be non-deliberate. In my opinion, omission being not deliberate and not supported by cogent reasons it would not be hazardous to read "implied will of the Legislators" in this provision so as to authorise the Registrar to correct the name of the child at the instance of the parents. I, therefore, hold that there is power in the Registrar to correct the entry already made by entertaining the application of the parents. In undertaking this exercise, I am reminded of what C. K. Alien said in his book "Law in the Making":
Judges must and do carry out the express will of the legislature as faithfully as they can, but there is a wide margin in almost every statute where the Courts cannot be said to be following any will except their own. The statute then becomes, as to great part of it, not a direct "command" but simply part of the social and legal material which judges have to handle according to their customary process of judicial logic.
5. In the result, petition succeeds. The respondent is directed to entertain the application of the petitioner by accepting the same and to amend the entry in the Birth Register by amending the name of the female minor child of the petitioner from that of "SUCHI" to PRACHI" and to initial such entry after correcting the name.
Rule is made absolute to the aforesaid extent with no order as to costs.