Augustine P.A. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **WP(C).No.5726 OF 2020(M)** ## **PETITIONER:** **AUGUSTINE P.A. AGED 79 YEARS S/O.AUGUSTHY, PADINJAREKARA HOUSE, ANGAMALY, ERNAKULAM-683572.** **BY ADV. SRI.K.G.RAJEESH** ## **RESPONDENTS:** **1 STATE OF KERALA, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SECRETARY. 2 DEPARTMENT OF BIRTHS AND DEATHS, PALA MUNICIPALITY, MUNICIPAL OFFICE, PALA, KOTTAYAM687575, REPRESENTED BY ITS REGISTRAR. 3 THE SECRETARY, PALA MUNICIPALITY, MUNICIPAL OFFICE, PALA, KOTTAYAM687575.** ## **OTHER PRESENT:** **SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.SUJITH MATHEW JOSE, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.5726/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No. 5726 of 2020 ---------------------------------------------Dated this the 27[th] day of February, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- _“Petitioner is aggrieved by the decision taken by the 2[nd] respondent by not granting the application made by the petitioner for change of name in the birth certificate of petitioner's younger brother. The daughter of the petitioner, Sigimol Augustin has been working in Italy from 2002 onwards. The name and house name of petitioner's daughter are categorically stated in Exhibit-P1 birth certificate as “Sigimol Augusin” and “Padinjarekara”. But in the Exhibit-P2 passport the name is entered as “Sigimol Augustin Padinjarekara”. From Exhibit-P1 and Exhibit P2 it is seen that petitioner's daughters name in both records are some but in Exhibit-P2 the house name is added with the surname. Moreover name of father in Exhibit-P1 and Exhibit-P2 are different. In Exhibit-P1 father's name is 'Augustine' whereas in Exhibit-P2 it is 'Padinjarekara Augusthy Augustine'. Since in the passport house name is attached with the name, all official identity cards of petitioner's daughter in Italy are entered as “Padinjarekara Sigimol Augusin”. In this year petitioner's daughter's passport is going to expire. Apart from that petitioner's daughter intend to apply for the Citizenship of Italy. For the said purposes the basic requirement is that the name of the person in passport and birth certificate are to be identical. The name of petitioner's daughter in Exhibit-P1 and Exhibit-P2 are identical but in Exhibit-P2 in addition to the name the house name is entered with the name. So petitioner made an application before the 2[nd] respondent for change in petitioner's daughters name in Exhibit-P1 document similar to Exhibit-P2. As the 2[nd] and 3[rd] respondents have not taken any positive steps, petitioner approached this Court as W.P._ W.P.(C)No.5726/2020 3 _(C) No.33952/2019 to issue a direction to the 2[nd] and 3[rd] respondents to change petitioner's daughter name in Exhibit-P1 similar to Exhibit-P2. This Hon'ble Court directed the 2[nd] and 3[rd] respondents to consider the application of the petitioner after producing the relevant school records. As per the direction in Exhibit-P5 order the petitioner submitted application before the 2[nd] respondent with relevant documents. Subsequently it is communicated by the 2[nd] respondent in its proceedings that petitioner's application for name change could not be processes as in the SSLC certificate the name of petitioner's daughter is entered as 'Sigimol Augustin'. As the representation of petitioner is not positively considered, seriously aggrieved by Exhibit-P6 proceedings of the 2[nd] respondent, petitioner approached this Court._ ” 2. It is in the light of these factual averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers:- _i) To call for the records leading to Exhibit-P6 proceedings and quash the same by issuance of a writ of mandamus or any other appropriate writ, direction._ _ii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3[rd] respondent on behalf of the 2[nd] respondent to incorporate the house name 'Padinjarekara' into the name 'Sigimol Augustin' in Exhibit-P1 Birth Certificate; iii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the 3[rd] respondent on behalf of the 2[nd] respondent to expand the name of the petitioner (name of father) in Exhibit-P1 birth certificate from 'Augustine' to Padinjarekara Augusthy Augusin._ 3. Heard Sri. Rajeesh, learned counsel appearing for the petitioner and Sri. Sujith Mathew Jose, learned Standing Counsel appearing for R2 and R3 (Pala Municipality) and Sri. K.J. Manu Raj, learned Government Pleader appearing for R1 State. 4. The plea for correction of the birth certificate issued to the petitioner's daughter has now been rejected as communicated as per the W.P.(C)No.5726/2020 4 impugned Ext. P6 letter dated 20.1.2020 issued by the 2[nd] respondent Registrar of Births and Deaths attached to the Pala Municipality on the ground that as the name now sought to be shown in the corrected version is divergent from that shown in the school records of the petitioner's daughter. It appears that the petitioner's daughter is now employed and settled in Italy and she is aspiring to seek citizenship of that country, for which purpose, the Italian Governmental authorities are insisting for her statutory birth certificate and further that there is divergence in the name of the applicant as shown in the birth certificate from that shown in other records like passport etc, then the applicant will be put to unnecessary hardship and difficulties in that regard. 5. The grievance projected in this case is as follows:- In Ext.P2 passport, the surname of the petitioner's daughter is “Padinjarekara” (going by her family name) and her first and second names are shown as “Sigimol Augustin” whereas the name of the petitioner's daughter has shown in Ext.P1 birth certificate is “Sigimol Augustin”. Further that the name of the petitioner (applicant's father) in Ext.P2 passport is “Padinjarekara Augusthy Augustin”, whereas the said name as per Ext.P1 birth certificate is “Augustin”. It is stated that the passport authorities has shown the surname as “Padinjarekara” going by the family name and so, the name of the petitioner's daughter to be shown in the applications to be preferred before the Italian authorities is “Padinjarekara Sigimol Augustin” which appears to be in variants with her name as shown in Ext.P1, wherein it is shown as “Sigimol Augustin”. So also there appears to be minor divergence in the name of the petitioner, who is the father of the applicant concerned. It is in view of these divergences, the application for correction of the W.P.(C)No.5726/2020 5 name of the candidate and the name of the candidate's father has been rejected by the 2[nd] respondent Registrar of Births and Deaths as per the impugned Ext.P6 . The petitioner has produced Ext.P7 certificate issued by the Village Officer concerned, wherein it is certified that “Sigimol Augustin Padinjarekara” and “Sigimol Augustin” is one and the same person. 6. The issue as to whether the statutory authorities like the Registrar of Births and Deaths has a power to correct an entry like the date of birth and name etc., as shown in the birth certificate is no longer res integra and is covered by a series of decisions of this Court as in the _**Sivanandan**_ v. _**Registrar of Births and Deaths**_ [2017 (3) KLT 721] _**Chalakudy Municipality**_ v. _**Malavika**_ reported in [2009(4)KLT 714] and _**Varghese**_ v. _**Director of Panchayat**_ reported in [2008 (2) KLT 278] and _**Johnson**_ v. _**Registrar of Births and Deaths**_ [2017(2) KLT 577]. It has been held in those decisions that as per Section 15 of the Registration of Births and Deaths Act and Rule 11 of the Registration of Births and Deaths Rule,1999 and that even if any of the contingencies envisaged in Section 15 and Rule 11 are not fully disclosed in the given case, still the statutory authority like the Registrar, Births and Deaths has the power to correct a mistake, if it is shown that the plea is bonafide and reasonable and in such a situation, the authority will have to act in terms of the well known principles of justice, equity and good conscience. In the aforesaid decision, in _**Johnson's case (supra)**_ , this Court has specifically dealt with the case relating to the application for correction of date of birth as entered in the register of Births and Deaths and it has been held in paragraph 4 thereof that the Registrar has the adequate power to correct any error or entry without any W.P.(C)No.5726/2020 6 alteration of the original entry by making a suitable entry in the margin and also after signing the marginal entry. It will be profitable to refer to paragraph 4 of the judgment of this Court in _**Johnson's case (supra),**_ which reads as follows:- _“4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that as per the provisions of S.15 of the Registration of Births and Deaths Act, 1969, the Registrar has the power to correct any error or entry without any alteration of the original entry by making a suitable entry in the margin and also sign the marginal entry. The said power can be exercised by the Registrar, if it is proved to the satisfaction of the Registrar that any entry of the birth or death in any register kept by him under the Act, is erroneous in form or substance, or has been fraudulently or improperly made. The provisions of the Kerala Registration of Births and Deaths Rules, 1999 and in particular R.11 thereof, also speak of the corrections of an entry in the register of birth and death. In the light of the peculiar situation that prevailed during the period from 2000 to 2007, I am of the view that the Writ Petition can be allowed, by directing the 1[st] respondent to effect the necessary corrections in Exs.P1 and P2 birth certificates, issued in relation to the petitioner's daughters, by incorporating therein the address and permanent address of the parents of the children in question, at the time of birth of the children, and issue fresh birth certificates in lieu of Exts.P1 and P2, to the petitioner. The 1[st] respondent shall do the needful to ensure that fresh birth certificates in lieu of Exts.P1 and P2, containing the necessary details, are furnished to the petitioner, within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the Writ Petition together with a copy of this judgment before the 1[st] respondent for further action.”_ Therefore, this Court is constrained to take the view that the approach taken by the 2[nd] respondent Registrar in rejecting the plea of petitioner's daughter as reflected in the impugned Ext.P6 rejection, does not appear to be in consonance with the above said legal principles laid down by this Court in the aforecited judgments. 7. Prima facie, there does not appear to be any serious substantial divergence in the name of the candidate or candidate's father. It is beyond any dispute that the name of the family of the candidate and her father is “Padinjarekara” and the passport authorities, while entering her name has shown W.P.(C)No.5726/2020 7 her surname as “Padinjarekara”, which appears to be her family name and her first and second name has been shown as “Sigimol Augustin”, which is fully in consonance with the name as shown in Ext.P1 birth certificate. The name of her father has been shown as “Augustin” in Ext.P1 birth certificate, whereas the full name of the father has been shown in Ext.P2 passport as “Padinjarekara Augusthy Augustin”. It is pointed out that the middle name “Augusthy” is the name of the father of the petitioner herein. Ext.P7 certificate issued by none other the Village Officer would certify that “Sigimol Augustin Padinjarekara” and “Sigimol Augustin” is the one and the same person. To obviate any doubt, the petitioner may produce the certificate of the Village Officer to show that the person shown as “Augustin” in Ext.P1 birth certificate and the person described as “Padinjarekara Augusthy Augustin” shown in Ext.P2 passport is one and the same person. 8. The learned counsel for the petitioner would point out that necessary steps will be taken to ensure that subject certificate (one and the same certificate) is secured from the Village Officer to show that “Augustin” and “Padinjarekara Augusthy Augustin” as referred to in Exts.P1 and P2 certificates is one and the same person. It is for the petitioner to file such an application before the 2[nd] respondent, without any further delay, after hearing both sides, this Court is of the considered view that as the impugned rejection as per Ext.P6 letter is not in consonance with the above said legal principles laid down by this Court in the aforesaid judgments, the matter requires serious reconsideration at the hands of the 2[nd] respondent. In that view of the matter, to effectuating such a remit, it is ordered that the impugned Ext.P6 will stand set aside and the application made W.P.(C)No.5726/2020 8 for change of the name of the petitioner's daughter will stand remitted to the 2[nd] respondent for consideration and decision afresh. Apart from Ext.P7 certificate, the petitioner may also produce certificate from the Village Officer to certify that “Augustin” and Padinjarekara Augusthy Augustin” is one and the same person etc., without much delay, preferably within a period of two weeks from the date of production of a certified copy of this judgment. Thereafter, the 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner and will take a considered decision on the plea for correction in the birth certificate of the petitioner's daughter as aforementioned and in the light of the aforecited dictum laid down by this Court in the aforecited judgments, without much delay, preferably within a period of three weeks from the date of submission of such certificate from the Village Officer as aforestated. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.5726/2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BIRTH CERTIFICATE DATED 11.10.2019 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE PASSPORT OF PETITIONER'S DAUGHTER ISSUED BY MINISTRY OF EXTERNAL AFFAIRS.** **EXHIBIT P3 TRUE COPIES OF THE PERMANENT RESIDENT CARD, IDENTITY CARD AND HEALTH CARD (TESSERA SANITARIA) OF PETITIONER'S DAUGHTER SIGIMOL AUGUSTINE IN ITALY.** **EXHIBIT P4 TRUE COPY OF THE FIRST PAGE OF THE SSLC BOOK OF PETITIONER'S DAUGHTER.** **EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 20.12.2019 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 20.1.2020. EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 8.11.2019 ISSUED BY THE VILLAGE OFFICER, ANGAMALY.**