Cyriac Thomas v. The Thiruvananthapuram Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945** ## **WP(C) NO. 12726 OF 2014** ## **PETITIONER:** **CYRIAC THOMAS, AGED 35 YEARS, S/O.LATE V.T.THOMAS, RESIDING AT 539C, IST FLOOR, DESSEYAKAVALA, KAKKANAD, ERNAKULAM.** **BY ADV SRI.GEORGE SEBASTIAN** ## **RESPONDENTS:** - **1 THE THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM, PIN - 695 033.** - **2 THE REGISTRAR OF BIRTHS AND DEATHS, CORPORATION OF THIRUVANANTHAPURAM, CORPORATION OFFICE,THIRUVANANTHAPURAM, PIN - 695 033.** - **3 THE SUPERINTENDENT SRI AVITTAM THIRUNNAL HOSPITAL, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM, PIN - 695 011.** **BY ADVS.** - **SRI.N.NANDAKUMARA MENON (SR.) SUMAN CHAKRAVARTHY** ## **BY ADV.** ## **SRI. B.S. SYAMANTHAK, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO.12726 OF 2014 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------------W.P.(C) No.12726 of 2014** **------------------------------------Dated this the 14[th] day of March, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: “1. To issue a Writ of certiorari calling for the originals of Exhibit P11 and to quash the same. 2. To declare that the petitioner is entitled to get a non-availability certificate as contemplated under Rule 13(3) of the Kerala Registration of Births and Deaths Rules 1999 on the basis of Exhibit P1. 3. To issue a writ of mandamus order or direction to the 2[nd] respondent to issue a non-availability certificate with respect to the registration of the birth of the petitioner as per Rule 13(3) of the Kerala Registration of Births and Deaths Rules 1999 on the basis of Exhibit P1. WP(C) NO.12726 OF 2014 3 4. To Grant such other Reliefs as this Hon'ble Court deems lit and proper in the circumstances of the case.” _[SIC]_ 2. The main prayer in this writ petition is for a direction to respondents 1 and 2 to issue a nonavailability certificate with respect to the registration of the birth of the petitioner. It is submitted that the petitioner was born on 15.02.1979 at the Sri. Avittam Thirunnal Hospital, Thiruvananthapuram. Ext.P1 relevant extract of the SSLC book issued in the year 1995, Ext.P2 passport taken in the year 2012 and Ext.P3 baptism certificate with respect to the baptism which had taken place in the year 1995 would clearly show that the petitioner was born at Thiruvananthapuram, within the territorial jurisdiction of the 1[st] respondent is the submission. The petitioner's father expired on 12.12.1996. His only brother expired on 20.01.2005 in a motor WP(C) NO.12726 OF 2014 4 accident and his mother also expired on 16.11.2007. The marriage of the petitioner had taken place on 17.01.2013 as evident by Ext.P4 marriage certificate is the submission. The petitioner's wife is presently working as a nurse at United States of America. The petitioner's wife had taken steps for taking the petitioner to United States of America under spouse visa. For the purpose of clearing the travel documents, the petitioner was in need of extract of his birth certificate and for the said purpose, by Ext.P5, the petitioner had applied for getting extract of his birth certificate before the 2[nd] respondent. The petitioner was given Ext.P6 reply that his birth is not seen registered. It was also informed that the petitioner should approach the concerned section with hospital records. The petitioner was directed by the Corporation authorities to apply to the hospital WP(C) NO.12726 OF 2014 5 concerned in a particular form given from the Corporation. It is submitted that, as directed by the Corporation authorities, the petitioner had preferred Ext.P7 application before the 3[rd] respondent hospital. Exts.P8 and P9 were issued from the hospital stating that the documents pertaining to the relevant period are not available. Faced with Ext.P8 reply, the petitioner on the basis of the advice given by the employees of the corporation had preferred Ext.P10 application before the 2[nd] respondent seeking registration of his birth. As a matter of fact, it is submitted that the 2[nd] respondent cannot register the marriage in view of Section 13(3) of the Registration of Births and Deaths Act, 1969, which stipulates that belated registration can be made only after getting orders from the magistrate. The petitioner was served with Ext.P11 reply stating that WP(C) NO.12726 OF 2014 6 in view of the enquiry report, the petitioner's birth cannot be registered. The petitioner had again made Ext.P12 request for registration along with copies of Ext.P1 to P3 and the petitioner had stated that his relatives who are acquainted with the factum of his birth will give affidavits and ready to tender evidence. In the meanwhile, the petitioner's immigrant visa interview was scheduled to be held at the US embassy. The petitioner has to produce his birth certificate at the time of interview. In the alternative, he has to produce the non-availability certificate before the US Embassy at Mumbai is the submission. Hence this Writ petition is filed. 3. Heard the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for respondents 1 and 2 and the learned Government Pleader. WP(C) NO.12726 OF 2014 7 4. This Court in **Kausalya P.K. v. Secretary, Kaiparambu Grama Panchayath and** **Others** [2019 (2) KHC 677] observed that the Secretary of the Panchayath can issue non availability certificate, if no records are available in the office of the local authorities to show that the death has been registered. The same is applicable in the case of the birth of the citizen also. It is also stated that the non registration of birth or death within one year of its occurrence shall be registered by the Magistrate of the First Class after verifying the correctness of birth or death sought to be registered. It is for the Magistrate alone to make an enquiry or verification in the matter. The relevant portion of the above judgment is extracted hereunder: “9. Considering the provisions under the Registration of Births and Deaths Act, 1969 and the WP(C) NO.12726 OF 2014 8 Rules made thereunder, I am of the opinion that the provisions contained in Ext.R1(b) Circular cannot be sustained as far as issuance of non availability certificates is concerned. S.13 of the Act, 1969 provides that 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. Therefore, it is for the Magistrate of the First Class/Presidency Magistrate to make necessary verification of the correctness of birth or death. Such power and duty entrusted with the Magistrate can be exercised only by the Magistrate. Neither the Act nor the Rules confers a power or casts any duty on the 1[st] respondent to make a factual adjudication on birth or death of any person, which is sought to be registered on or after one year of the birth / death. 10. The requirement of the petitioner is to get a non availability certificate from the 1[st] respondent in respect of the death of her husband. What is to be certified by the 1[st] respondent is that there are no records available in the office of the 1[st] respondent to show that the death has been registered. Such a certificate is required in order to register the death of the late husband of the WP(C) NO.12726 OF 2014 9 petitioner. Insistence on non availability certificate is to avoid multiple registration of a death. 11. When S.13(3) of the Act, 1969 empowers the Magistrate of the First Class to verify the correctness of a birth or death sought to be registered after one year, it is for the Magistrate alone to make an enquiry or verification in the matter. Under the guidelines issued in a Circular of the Executive Government, the 1[st] resporident cannot usurp that power, make an enquiry and decide the issue. Ext.P1 is, therefore, unsustainable. 12. In view of the facts stated above, Ext.P1 order of the 1[st] respondent is set aside. The 1[st] respondent is directed to consider the application submitted by the petitioner and issue nonavailability certificate, if the records in respect of the death of the petitioner's late husband is not available in his office. The non availability certificate shall be issued to the petitioner, within a period of one month. Writ petition is disposed of accordingly.” ## 5. In **Indira Sumathi v. Registrar of** **Births and Deaths and Another** [2021 KHC 5057] also, this Court considered the same issue. The WP(C) NO.12726 OF 2014 10 ## relevant portion of the above judgment is also extracted hereunder: “7. In the judgment in Kausalya P.K. (supra), this Court held that S.14 of the Registration of Births and Deaths Act, 1969 provides that 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. This Court further held that it is for the Magistrate of the First Class / Presidency Magistrate to make necessary verification of the correctness of birth or death. Such power and duty entrusted with the Magistrate can be exercised only by the Magistrate. Neither the Act nor the Rules confer a power or casts a duty on respondents 1 and 2 to make a factual adjudication on birth or death of any person, which is sought to be registered on or after one year of the birth / death. 8. However, it may be noted that on receipt of an application, the 1[st] respondent has noted that a birth has been registered with the Registrar of Births, Thiruvananthapuram Corporation wherein the names of the petitioner and her husband are identical. The permanent address shown in Ext.P5 Birth Certificate issued by the Thiruvananthapuram WP(C) NO.12726 OF 2014 11 Corporation is also more or less the same. Therefore, there is a likelihood that Ext.P5 Birth Certificate is in respect of the petitioner's son. 9. However, since the petitioner is disputing the identity of the person named in Ext.P5, an enquiry will have to be made by the competent Magistrate, for which a Nonavailability Certificate would be necessary. 10. Since the petitioner is swearing that the birth of her son took place within the territorial limits of Chirayinkeezhu Grama Panchayat and as the petitioner has submitted an application for Non - availability Certificate, such application will have to be acted upon by the respondents. If the petitioner wants to register the birth of her son with the 1[st] respondent - Registrar and if the birth of the child actually took place in Chirayinkeezhu Grama Panchayat, denial of Non- availability Certificate would prejudice the petitioner. At the same time, the fact that same/ identical names are seen in Ext.P5 Birth Certificate issued by the Thiruvananthapuram Corporation with a different date of birth cannot be ignored. In the facts and circumstances of the case, the writ petition is disposed of directing respondents 1 and 2 to issue a Non- availability Certificate to the petitioner if the birth claimed by her is not seen WP(C) NO.12726 OF 2014 12 registered with the 1[st] respondent. It is further directed that in the Non availability Certificate to be issued to the petitioner, a further endorsement shall be made by the respondents to the effect that "a birth is seen registered by the Registrar of Births and Deaths, Thiruvananthapuram Corporation with registration No.1722/1982 on 27.02.1982 with same / similar name and same / similar permanent address of parents, with date of birth 26.02.1982".” In the light of the above principle, I am of the considered opinion that the Corporation has to issue a non-availability certificate, if there is no records available regarding the birth of the petitioner. Therefore, this Writ Petition is disposed of with the following directions: i) Ext.P11 is set aside. ii) Respondents 1 and 2 are directed to issue a non-availability certificate, if the birth details of the petitioner is not available with the WP(C) NO.12726 OF 2014 13 ## Corporation authorities. iii) The above exercise shall be completed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a stamped certified copy of this judgment. _Sd/-_ DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.12726 OF 2014 14 ## **APPENDIX OF WP(C) 12726/2014** ## **PETITIONER EXHIBITS** **EXHIBIT P1 COPY OF THE RELEVANT EXTRACT OF THE SSLC BOOK OF THE PETITIONER** **EXHIBIT P2 COPY OF THE RELEVANT EXTRACT OF THE PASSPORT OF THE PETITIONER ISSUED ON 27/12/2012** **EXHIBIT P3 COPY OF THE CERTIFICATE OF BABPTISM DATED 10/2/2014** **EXHIBIT P4 COPY OF THE MARRIAGE CERTIFICATE OF THE PETITIONER DATED 1/2/2014** **EXHIBIT P5 COPY OF THE RECEIPT DATED 24/1/2014** **EXHIBIT P6 COPY OF THE REPLY DATED 30/1/2014 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT P7 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** **EXHIBIT P8 COPY OF THE COMMUNICATION DATED 3/3/2014 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT** **EXHIBIT P9 COPY OF THE COMMUNICATION DATED 27/2/2014 FROM THE HEAD OF THE DEPARTMENT OF OB AND GYNAC TO THE 3RD RESPONDENT** **EXHIBIT P10 COPY OF THE APPLICATION** WP(C) NO.12726 OF 2014 15 |**DATED 24/3/2014 FILED BY THE**| |---| |**PETITIONER**<br>**BEFORE**<br>**THE**<br>**2ND**| |**RESPONDENT**| |**EXHIBIT P11 COPY OF THE REPLY DATED**| |**6/5/2014 ISSUED BY THE 2ND**| |**RESPONDENT TO THE PETITIONER**| |**EXHIBIT P12 COPY OF THE REQUEST**| |**DATED 15/5/2014 FILED BY THE**| |**PETITIONER**<br>**BEFORE**<br>**THE**<br>**2ND**| |**RESPONDENT**| |**EXHIBIT**<br>**P13**<br>**COPY**<br>**OF**<br>**THE**| |**COMMUNICATION ADDRESSED TO THE**| |**LAWYER OF THE PETITIONER'S WIFE**| |**FROM NATIONAL VISA CENTRE, UNITED**| |**STATES DEPARTMENT OF STATES**| **RESPONDENTS EXHIBITS : NIL** **//TRUE COPY// PA TO JUDGE**