Gujarat High Court
Bhavya Rajeshkumar Patel - Minor vs State Of Gujarat & 2 on 10 December, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/9930/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9930 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHAVYA RAJESHKUMAR PATEL - MINOR....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR YV VAGHELA, ADVOCATE for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 10/12/2015
ORAL JUDGMENT
Upon request and consent of learned advocates appearing for the parties, and having regard to the compass and nature of the controversy, the petition was taken up for final consideration today.
1.1 Rule, returnable forthwith. Learned Assistant
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C/SCA/9930/2015 JUDGMENT
Government Pleader Ms. Jyoti Bhatt waives service of notice of rule on behalf of respondent No.1. Learned advocate Mr. Deepak Sanchela waives service of notice of rule on behalf of respondent No.2. Respondent No.3 is a formal party and having regard to the nature of order being passed herein, respondent No.3 is not affected, therefore service of rule to said respondent No.3 is waived.
2. The petitioner is a minor child, who has filed the present petition through his father and natural guardian. The relief prayed for is to set aside communication dated 08.04.2015 of respondent No. 2- competent authority under the Registration of Births and Deaths Act, 1969 and to direct the authority to issue certificate of birth duly corrected by incorporating the name of petitioner's adoptive parents, that is father-Rajeshkumar Babulal Patel and mother-Pravinaben Rajeshkumar Patel.
3. It is the case inter alia that the petitioner minor boy Bhavya was born on 17.11.2012 and his biological parents were Ashokkumar Babulal Patel and Varshaben Ashokkumar Patel. It is stated that before the Sub Registrar, Mehsana, a registered adoption deed dated 24.03.2015 came to be executed being registration No. 2819. It is averred that ceremony and rites for adoption were carried out on 17.02.2015 in the presence of family members whereafter the adoption deed was executed and got registered. It is further stated that the adoptive married couple being Rajeshkumar Babulal Patel and Pravinaben Rajeshkumar Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Dec 17 00:27:54 IST 2015 C/SCA/9930/2015 JUDGMENT Patel did not have any issue out of their wedlock, therefore they were desirous to adopt and the petitioner minor Bhavya, who was the third child of Ashokkumar Babulal Patel, came to be adopted with consensus amongst the family members.
3.1 It appears that the petitioner made an application dated 26.03.2015 before respondent No.2- competent authority for seeking the names of his adoptive parents inserted in the birth certificate. Minor boy Bhavya was born on 17.11.2012 whose birth was registered at No. 3027 in the record of the Municipality. It was requested to the authority on the basis of the registered adoption deed that the names of the father and mother be corrected in the birth certificate. Respondent No.2 authority by impugned communication dated 08.04.2015 refused the request. Respondent No.2 stated that the petitioner should obtain an order form the court of competent jurisdiction and produce other relevant documents in support of the request.
4. Learned advocate Mr. Y. V. Vaghela for the petitioner submitted that respondent No.2 failed to take into account the registered Adoption Deed. He submitted that he did not exercise the powers though vested in law and committed an error in not accepting request for correction of the names of the parents of the petitioner in the Certificate of Birth. Learned advocate in support of his submission relied on decisions of this Court in Manoj Omprakash Goyal Vs State of Gujarat [2011(2) GLH 455] and another Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Dec 17 00:27:54 IST 2015 C/SCA/9930/2015 JUDGMENT decision in Rameshbhai Nathubhai Solanki Vs Rajkot Municipal Corporation [2013(2) GLR 1535]. 4.1 Learned advocate Mr. Deepak Sanchela for respondent No.2 submitted that correction in Certificate of Birth could be permitted only in accordance with the provisions of law and the Rules. However when confronted with the ratio of the aforesaid decisions of this Court, he was at the receiving end.
5. Respondent No.2 which is the competent authority functioning under the Registration of Births and Deaths Act is vested with statutory power under Section 15 of the said Act which empowers the authority to effect correction in the entries in the Birth Certificate. The decision of this Court in Nitaben Nareshbhai Patel Vs State of Gujarat[(2008) 1 GLR 884] held that the authority under the Act is duty bound to exercise powers under Section 15 of the Act read with Rule 11 of the Gujarat Registration of Birth and Death Rules, 2004 and consider the request for corrections in the Birth Certificate. It is held that a writ of mandamus can be issued since the authority is statutorily enjoined to act.
6. Reverting to the facts of the case of the petitioner, it is on the basis of a registered Adoption Deed that the petitioner made a request to respondent No.2 authority by application dated 26.03.2015 to incorporate the name of his adoptive father and mother. A copy of registered Adoption Deed was produced before the authority and it was submitted Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Dec 17 00:27:54 IST 2015 C/SCA/9930/2015 JUDGMENT that the brother-Rajeshkumar and sister-in-law- Pravinaben had taken the petitioner as adoptive son. The Chief Officer and the competent authority did not consider the request made on the above basis, but required in the impugned order that the petitioner should obtain a writ from the Court and the petitioner was further required to produce further documents.
6.1 The date of birth and the other details of the petitioner is already recorded in the Birth Certificate issued by the authority at the relevant time. It cannot be gainsaid that the registered Adoption Deed has to be a valid aspect to go into the consideration of the authority when he deals with the application of the petitioner for correction in the Certificate of Birth.
6.2 In Amruta Vijay Vora Vs Union of India [2013 (2) GLR 2625], the petitioner wanted the name of adoptive father inserted in the passport on the basis of registered Deed of Adoption. This Court observed and held that as per Section 18 of Hindu Adoption and Maintenance Act, 1956, when any Adoption Deed is registered there shall be a presumption for documents relating to the adoption and the presumption shall be that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved. It was observed that such presumption can be made applicable not only in court proceedings but such presumption in view of Section 16 can also reasonably be made applicable even at the time when the authority has to consider the mater for issuance Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Dec 17 00:27:54 IST 2015 C/SCA/9930/2015 JUDGMENT of passport because the passport authority while considering the matter for issuance of passport is also acting as a quasi-judicial authority. It has to be stated that though the aforesaid decision is with regard to the change in the passport details, the principle about the legal assertiveness of registered Adoption Deed would apply. The authority under the Registration of Birth and Death Act has to act in accordance with law exercising powers under Section 15 read with Rule 11 of the Rules in relation to the application made by the petitioner.
7. In light of above discussion, the impugned decision reflected in letter dated 08.04.2015 of respondent No.2 is hereby set aside. Respondent No.2 shall consider the request of the petitioner in accordance with law and on merits exercising powers under Section 15 of the Registration of Births and Deaths Act and the relevant Rule. Respondent No.2 shall complete the exercise expeditiously and take appropriate decision preferable within six weeks from the date of receipt of this order. Petitioner is permitted to produce any other additional document in support of his request which may be asked for by the authority. Rule is made absolute in the above terms.
Direct service is permitted.
(N.V.ANJARIA, J.) chandrashekhar Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Dec 17 00:27:54 IST 2015