The present petition has been filed by the petitioner under Article 19 and 226 of the Constitution of India as well as under the Registration of Birth & Death Act, 1969 read with Gujarat Registration of Births and Deaths Rules, 2004 for the prayer regarding correction of date of birth as follows :-
A. This Petition may be admitted and allowed.
B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or certiorari or any other appropriate writ, order or direction quashing and setting aside the order / letter No.2366 dated 23-10-2012 issued by the respondent No.2.
C. YOUR LORDSHIPS may further be pleased to direct the respondent No.2 to correct or change the name of the Son of the petitioner from KAVYA to VIRAJ and to issue Birth Certificate with corrected name as VIRAJ to the petitioner in the interest of justice.
D. Any other relief that may be deemed just and proper may also be kindly granted.
The facts of the case briefly stated are that the petitioner married with one Jitendrabhai Thakkar on 20.05.2003 and they gave birth to two baby boys. The name of the petitioner s son is recorded as Kavya in the birth certificate produced at Annexure-A and date of birth is 25.05.2009. However, the petitioner and family members intended to keep name of son as Viraj and, therefore, at the time of admission in the school, name of son of the petitioner is recorded as Viraj Jitendrabhai Thakkar as stated in the certificate at Annexure-B. Thereafter they had applied for the change of name and thereafter gazettee was also published with notification that name Kavya J. Thakkar be corrected as Viraj J. Thakkar . Thereafter, an application has been made before the respondent no.2-authority for the change of name of son of the petitioner from Kavya to Viraj, however, same has been rejected by the respondent as per communication dated 23.10.2012 at Annexure-E, which has been led to filing of the present petition on the grounds stated in the petition.
Heard learned counsel appearing for the respectively parties.
Learned counsel, Shri Gaurav Chudasama has referred to and relied upon the judgments of the High Court reported in 2008 (1) G.L.H. 556 in case of Nitaben Nareshbhai Patel Vs. (The) State of Gujarat & Ors. as well as 2008 (1) G.L.H. (U.J.) 683 in case of Misrikhan Dilavarkhan Pathan Vs. (The) State of Gujarat Thro the Secretary & Ors.
He also referred to Section 15 of the Registration of Birth & Death Act, 1969 and emphasized that entry could be modified or corrected. He has also referred to Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 for that purpose to emphasis that as per the said Rules, powers have been vested to the respondent no.2-authority and, therefore, the application for correction ought to have been entertained. Therefore, learned counsel, Shri Chudasama submitted that the present petition may be allowed regarding correction/change of name of son of the petitioner from Kavya to Viraj and to issue fresh birth certificate. Reliance is placed on the judgment of the Division Bench of the High Court in case of Nitaben Nareshbhai Patel Vs. (The) State of Gujarat & Ors, reported in 2008 (1) GLR 884.
Per contract, learned AGP Shri Vyas has referred to the provisions of the Registration of Birth & Death Act, 1969 and the Rules. He has also submitted that the petitioner desires to change the name in the birth certificate itself is a matter of appreciation of evidence and material, which could be examined either in the civil court or before the Court of Magistrate as provided under Section 13 of the Act. He therefore referred to Section 13(3) of the Act, which provides as under :-
Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.
He, therefore, submitted that as per the provisions of the Act, necessary application could be made before the Court of Magistrate and the present petition may not be entertained.
In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.
As could be seen from the facts, the application has been made that the name of the petitioner s son is recorded as Kavya in the birth certificate produced at Annexure-A though they intended to keep the name of son as Viraj and, therefore, his name has been recorded in the school at the time of admission as Viraj Jitendrabhai Thakkar . Therefore, an application has been made before the respondent no.2-authority for the change of name of petitioner s son from Kavya to Viraj , which came to be rejected by the impugned communication dated 23.10.2012 produced at Annexure-E. The communication refers to the provisions of the Registration of Birth & Death Act, 1969, however, it does not refer to any provision or reason that why it should not be granted when Section 15 of the Act itself provides for such correction. Section 15 of the said Act reads as under :-
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.
Thereafter, Rules have been made, which is known as Gujarat Registration of Birth and Death Rules, 2004 vide Notification dated 09.01.2004. Rule 11 provides for correction or cancellation of an entry in register of birth and death. Rule 11(4) provides as under :-
(4) If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may 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.
Thus, the statutory provisions as well as Rule clearly provide for correction of such entry recorded in the birth and death register. As referred to hereinabove, Section 15 provides for the correction at the instance of the person concerned by the Registrar as provided in Rules. Rule 11(4) refers to Section 15 and lays down the procedure that entry can be corrected in the manner prescribed and thus Rule 11(4) provide that the entry could be corrected on production by that person a declaration setting forth the nature of error and true facts of the case made by two credible persons having knowledge of the fact. Thus it is not the case that there is any total lack of power or jurisdiction. When the statute read with Rules provide for such correction, it is obligatory on the part of the respondent authorities to make necessary correction after getting satisfied with necessary papers or material. This aspect has been considered at length laying down the guidelines regarding such correction of the entry in the register of birth and death by High Court in case of Nitaben Nareshbhai Patel Vs. (The) State of Gujarat & Ors., reported in 2008 (1) G.L.H. 556. The High Court has decided the issue whether the competent authority has power to make such correction in the register of birth and death or not. It has been clearly observed as under :
when there is clear jurisdiction vested with the authority concerned as envisaged under Section 15 coupled with Rule 11 of the State Rules and procedure explained in the guidelines, there is no room for doubt that authority has power to correct or cancel the entries in the register of Births and Deaths.
Further the submission made by learned counsel for the respondents referring to the provisions of Section 13(3) of the Act would not be attracted as it has a reference to delay in registration of the birth which has already discussed and dealt with in the aforesaid judgment in case of Nitaben Nareshbhai Patel (supra) and also the observations made by the Division Bench of the High Court in case of Mulla Faizal @ Fazilabanu Suleman Ibrahim Vs. State of Gujarat & Ors., reported in 2000 (2) GLR 1553, wherein it has been observed as under :-
In our considered opinion, the authorities, under the provisions of Section 15 read with Rule 12 of the Rules framed thereunder, are duty-bound in law to make necessary enquiries and if necessary to obtain medical opinion to grant change of entry in the birth register regarding the sex of the appellant and to issue to him a corrected birth certificate.
In view of above observations, the present petition deserves to be allowed.
It is required to be mentioned that the High Court in its judgment in case of Nitaben Nareshbhai Patel (supra) has considered these aspects including the aspect of casus omissus while entertaining the petition and, therefore, the present petition deserves to be allowed.
In the circumstances, the present petition stands allowed in terms of Para Nos.16B & 16C. The impugned communication/letter dated 23.10.2012 issued by the respondent no.2 is hereby quashed and set aside. The respondent no.2 is hereby directed to change the name of son of the petitioner from Kavya to Viraj and issue fresh birth certificate with corrected name within a period of four weeks.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 10 of 10