Aby Mani v. Registrar, Births and Deaths, Chottanikkara Grama Panchayat and Ambika

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **WP(C).No. 37817 of 2015** ## **PETITIONER:** **ABY MANI AGED 36 YEARS S/O.C.M.MANI, CHIRAPPATTU HOUSE, KINGINIMATTOM P.O., KOLENCHERRY, ERNAKULAM, PIN: 682 311.** **BY ADV. SRI.P.VISWANATHAN (SR.)** ## **RESPONDENTS:** **1 THE REGISTRAR, BIRTHS AND DEATHS, CHOTTANIKKARA GRAMA PANCHAYAT, CHOTTANIKKARA, ERNAKULAM DISTRICT, PIN: 682 312. 2 AMBIKA AGED 45 YEARS KRISHNA NIVAS, CHOTANIKKARA, ERNAKULAM DISTRICT, PIN: 682 312.** **BY ADVS. SRI.P.MARTIN JOSE SRI.A.T.ANILKUMAR for R2 SMT.V.SHYLAJA SRI.P.PRIJITH SRI.S.SREEKUMAR (SR.) SRI.THOMAS P.KURUVILLA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _WP(C).No. 37817 of 2015_ _2_ ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: A. Issue a writ of mandamus or any other appropriate writ, order or direction to the respondent to make correction in Ext.P6 certificate on the basis of Ext.P7 application. B. Issue such other writs, order or direction as are necessary in the nature of the case and in the interest of justice. C. Direct the respondent to pay cost of the petition. 2. The subject issue raised in this writ petition even though is seeking correction of death certificate issued by showing the name and address of the deceased person, there is a clear dispute pending by and between the petitioner and the 2[nd] respondent in respect of paternity and there is a clear identity clash of one and the same person claimed by the petitioner and the 2[nd] respondent to be their father. Brief material facts for the disposal of the writ petition are as follows; 3. According to the petitioner, his father's name is C.M.Mani, a Christian name. He died on 28.7.2015 at _WP(C).No. 37817 of 2015 3_ Chottanikkara. Soon after his death, petitioner submitted an application before the 1[st] respondent to register the death of his father in the Register of Births and Deaths. Thereafter on 31.7.2015, petitioner submitted an application before the 1[st] respondent seeking to issue a death certificate of his father. On receipt of the same, 1[st] respondent issued a letter dated 10.8.2015 stating that, two representations with respect to the death of C.M.Mani were received in his office and directed the petitioner to submit certificate from the Village Office showing the permanent address of the deceased and hence petitioner submitted Exts.P2, P3 and P4 showing permanent address of petitioner's father. In spite of production of these evidences, 1[st] respondent did not issue the death certificate. Anyway on making a representation, Ext.P6 death certificate was issued, which according to the petitioner, contained so many anomalies and mistakes. Thereupon, petitioner submitted an application for correction of Ext.P6 certificate, to which 1[st] respondent has given a reply stating that, 2[nd] respondent had submitted an application, in which it is stated that, the permanent address of the deceased at the time of his death is Krishnanivas, Chottanikkara. It is the case of _WP(C).No. 37817 of 2015 4_ the petitioner that, 1[st] respondent has purposefully avoided to state in Ext.P8 communication dated 17.9.2015 about Ext.P2 certificate produced by the petitioner to show the permanent address of his deceased father. Therefore, it is the case of the petitioner that, the 1[st] respondent has not carried out correction due to some extraneous reasons and the pressure exerted by the 2[nd] respondent. 4. Second respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. Among other contentions it is stated that, C.M.Mani was born in Chirappattu House at Aikkaranada South Village and his name is not C.M.Ma'a'ni as claimed by the petitioner (additional 'a' is supplemented for understanding the situation). In Ext.P5, petitioner himself had admitted that C.M.Mani expired within the limits of the Chottanikkara Grama Panchayat on 28.7.2015. It is an undisputed fact that, the said C.M.Mani is the husband of Santha and their marriage had taken place during 1970 and from that day onwards C.M.Mani was residing at Chottanikkara in the address shown in Ext.P6. The ration card as well as the Voter ID card of the C.M.Mani shows _WP(C).No. 37817 of 2015 5_ that, the deceased was permanently residing in Krishna Nivas along with Santha at Chottanikkara, evident from Ext.R2(a) certificate issued by the Grama Panchayat. Ext.R2(a) to Ext.R2(d) documents are also produced to justify the residence of C.M.Mani with Santha at Krishna Nivas, Chottanikkara. According to the 2[nd] respondent, Ext.P2, P3 and P4 are certificates created recently for the purpose of filing the case, whereas the documents produced by the 2[nd] respondent will convincingly establish that, C.M.Mani is her father. 5. I have considered the rival submissions made across the Bar and perused the pleadings and documents on record. 6. The facts discussion made above would make it clear that, there is a clear identity crisis of one and the same person. So far as the paternity claimed by the petitioner and the 2[nd] respondent is concerned, even though both have produced documents, unless and until the issue is adjudicated by a competent civil court, the truth cannot be deciphered. Learned counsel for petitioner invited my attention to rule 15 of Registration of Births and Deaths Act, 1969 and rule 11 of the Registration of Births and Deaths Rules, 1999, _WP(C).No. 37817 of 2015 6_ which read 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 fraudultenly 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._ _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 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 and shall send an extract of the entry showing the error and how it has been_ _WP(C).No. 37817 of 2015 7_ _corrected to the State Government or the officer specified by it in this behalf._ _(2) 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 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._ - _(3) Notwithstanding anything contained in sub-rule_ _(1) and sub-rule (2) the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the State Government or the officer specified in this behalf._ _(4) 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 made, he shall make a report giving necessary details to the officer authorised by the Chief Registrar by general or special order in this behalf under Section 25 and on hearing from him take necessary action in the matter._ _(5) In every cases in which an entry is corrected or cancelled under this rule, intimation thereof should_ _WP(C).No. 37817 of 2015 8_ _be sent to the permanent address of the person who has given information under Section 8 or Section 9.”_ 7. Learned counsel also invited my attention to a Division Bench judgment of this court in **Chalakudy Municipality v. Malavika** [2009(4)KLT 714 where the question was with respect to the corrections to be carried out on date, place and other particulars. Paragraph (4) is relevant to the context, which read thus: _“4. Going by the purpose of the enactment_ _and the scheme for registration and for correction in the entries therein, it is unambiguously clear that corrections either in_ _form or substance is permissible. The only pre-condition is that the Registrar should be satisfied that the entry in the register regarding birth or death was erroneous in form or substance or the same has been fraudulently or improperly made. The entry in the register means the entries on the name and the particulars regarding the relationship, place and date. If the correction is sought within five years, the satisfaction need only be at the level of the Registrar and if the_ _WP(C).No. 37817 of 2015_ _9_ _correction is sought to be made after five years, the corrections can be made only on the satisfaction of the Chief Registrar. The identity of the person concerned is the crucially relevant factor, as far as correction of the name is concerned and as far as the correction of the date, place and other particulars are concerned, in case there had been any mistake in the original entry and if the Registrar is satisfied that the same is erroneously entered, he has to exercise his power to permit the correction. The law does not contemplate a person to have a wrong name in the register or a mistaken identity in the register or to have wrong particulars regarding the date, place etc. in the register of birth or death. It is also to be noted that the Registration of Births and Deaths Act,_ _1969 does not create or extinguish any right; the Act is intended only to regulate the process and procedures of registration of births and deaths and the correction of any such entry. Once the Act permits such correction either in form or substance, the Rules are intended only to regulate the_ _WP(C).No. 37817 of 2015_ _10_ _procedure and not to prohibit such correction. The subordinate legislation by way of rules, notifications, circulars etc. cannot restrict_ _the scope of the plenary legislation. Conversely they cannot expand the scope either, as far as the correction of the entries in the register of birth or death is concerned. S.15 only contemplates that the Registrar should be satisfied as to the mistake in the entry. The section clearly states that the correction can either be in the form or substance also._ _R.11 would also indicate that once the_ _Registrar is moved for correction of any entry_ _in the register of birth or death, it is mandatory on his part to enquire into the matter and once he is satisfied that the entry is erroneous, the rule mandates that the_ _correction should be made as required under S.15 of the Act. In such circumstances it is for the Registrar concerned to intimate the Government and all concerned and also, if required, to take further action under S.25 for prosecution in case the mistaken entry was fraudulently or improperly made.”_ _WP(C).No. 37817 of 2015 11_ 8. Therefore, on a reading of the said judgment, it is clear that, the Division Bench of this Court has ventured to decide the issue since there was no dispute remaining with respect to the paternity. In my considered view, the said judgment was rendered in an entirely different fact situation. So far as the facts and circumstances of this case is concerned, petitioner and the 2[nd] respondent are belonging to Christian and Hindu community respectively. According to the petitioner, the name of his father is C.M.Ma'a'ni whereas according to the 2[nd] respondent, name of her father is C.M.Mani. 9. The issue is complex and surmounted by facts which can be finally decided upon after taking necessary and requisite evidence for the purpose. Moreover, it will be inappropriate on the part of this court to attain finality to the issue without identifying the truth. So much so, the issue cannot be dealt with lightly and in a perfunctory manner. It is also apposite that this court should not decide any such issues finally on mere surmises and conjunctures. So also I find no arbitrariness or illegality on the part of the 1[st] respondent declining to carry out the correction, liable to be interfered under Article 226 of the Constitution of _WP(C).No. 37817 of 2015 12_ India. Upshot of the above discussion is, the writ petition fails, accordingly it is dismissed. However, all the questions of facts and law raised by the petitioner and the respondents are left open and the observations and findings shall not be construed as any expression of opinion on the merits of the matter or rival interest of the parties. Smv 28.1.2018 **Sd/-** **SHAJI P.CHALY** **JUDGE** _WP(C).No. 37817 of 2015_ _13_ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 P1: A TRUE COPY OF THE SAID COMMUNICATION ISSUED BY THE RESPONDENT DATED 10/8/2015** **EXHIBIT P2 P2: A TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, AIKKARANAD SOUTH VILLAGE** **EXHIBIT P3 P3: A TRUE COPY OF THE SAID EXTRACT OF THE ADMISSION REGISTER ISSUED BY THE HEADMISTRESS GOVERNMENT HSS, POOTHRIKKA DATED 6/8/2015** **EXHIBIT P4 P4: A TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE VIKAR ST.PETER'S AND ST.PAUL'S JACOBITE SYRIAN CHURCH DATED 4/8/2015.** **EXHIBIT P5 P5: A TRUE COPY OF THE REPORT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 19/8/2015** **EXHIBIT P6 P6: A TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER ON 11/9/2015 EXHIBIT P7 P7: A TRUE COPY OF THE SAID APPLICATION DATED 15/9/2015 EXHIBIT P8 P8: A TRUE COPY OF THE COMMUNICATION DATED 17/9/2015 RESPONDENT'S EXHIBITS:** **EXHIBIT R2 A** TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHOTTANIKKARA GRAMA PANCHAYATH SHOWING THAT SAID C.M. MANI AND HIS WIFE K. SANTHAMMA ARE PERMANENTLY RESIDING IN THE LIMITS OF SAID GRAMA PANCHAYATH. **EXHIBIT R2 B** TRUE COPY OF THE CERTIFICATE ISSUED BY SUB TREASURY OFFICER, MULANTHURUTHY. **EXHIBIT R2 C** TRUE COPY OF THE RATION CARD ISSUED IN THE NAME OF SAID C.M.MANI. **EXHIBIT R2 D** TRUE COPY OF THE VOTERS LIST DURING 2005 FOR CHOTTANIKKARA GRAMA PANCHAYATH IVTH WARD.