Geetha Pai v. Registrar of Birth and Death, Kanhangad Municipality

WP(C) NO. 31315 OF 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 WP(C) NO. 31315 OF 2022** ## **PETITIONER/S:** GEETHA PAI., AGED 63 YEARS W/O ANANDARAYA PAI, MELANGOT, HOSDURG TALUK, KANHANGAD (P.O), KASARAGOD DISTRICT PIN - 671315. BY ADVS. JAWAHAR JOSE CISSY MATHEWS JAISON ANTONY EDWIN JOSEPH ## **RESPONDENT/S:** THE REGISTRAR OF BIRTH AND DEATH KANHANGAD MUNICIPALITY, KANHANGAD (P.O), KASARAGOD DISTRICT. PIN - 671315. ## **OTHER PRESENT:** SRI.R.ROHITH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 31315 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No.31315 of 2022** **-------------------------------------Dated this the 6[th] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : “(i) Call for the records leading to Ext.P10 order and issue as writ in the nature of certiorari quashing the said order. (ii) Issue a writ in the nature of mandamus directing the respondent to take appropriate decision on Ext.P1 application in accordance with Section 15 of the Registration ofBirths and Deaths Act, 1969 and Rule 11 of the Kerala Registration of Births and Deaths Rules, 1999, within a period of 10 days as the right of the petitioner's daughter to obtain the permanent residency in the United States of America will be affected, if the delay so occurred from the respondent in taking the decision. (iii) Declare that the respondent is competent to correct an entry in the “Birth Register” if the same is proved as erroneous or improper, if the Registrar is satisfied with the affidavits sworn as per Rule 11(2) of the Kerala Registration of Births and Deaths Rules, 1999. (iv) Dispense the petitioner from producing the English translation of the Malayalam documents along with the writ WP(C) NO. 31315 OF 2022 3 petition. (v) Grant such other order or direction as this Hon'ble Court may deem fit and necessary, in the facts and circumstance of the case.” [SIC] 2. The petitioner is the mother of Smt.Surekha Pai. The petitioner's daughter Smt. Surekha Pai was born on 10.3.1981 at a nursing home by name Deepa Nursing Home. Smt.Surekha Pai is now a resident of New York in the United States of America. The petitioner's daughter applied for a permanent residency in the United States which is known as “Green Card” and the process of making the application is legally known as “adjustment of status”. In the process of making application for the “adjustment of status”, the petitioner's daughter is obliged under the federal law of the United States to submit every document she possessed which was issued by the statutory authorities in India including the documents evidencing her educational qualification. It is the case of the petitioner that only at that time the petitioner and her daughter understand that her “date of birth” was wrongly recorded in the Birth WP(C) NO. 31315 OF 2022 4 Register maintained under the Registration of Births and Deaths Act, 1969. As per Exts.P3, P4 and P5, the date of birth of the petitioner is correctly noted as 10.3.1981. Date of birth of the petitioner's daughter was wrongly recorded in the birth register as 21.6.1981 instead of the correct date of birth, which is 10.3.1981. To correct the said mistake, the petitioner submitted Ext.P1 application under Rule 11 of the Kerala Registration of Birth and Death Rules, 1999 (for short “the Rules, 1999”). The petitioner also produced Exts.P2 to P9, to substantiate that, the date of birth of the petitioner's daughter is 10.3.1981 and not 21.6.1981. Ext.P2 is the certificate issued by the Deepa Hospital certifying that Smt. Surekha Pai was born in Deepa Nursing Home on 10.3.1981 for parents K.Anantharaya Pai and Geetha Pai. It is also stated that they have no records of that time in this hospital. Ext.P3 is the Secondary School Examination Certificate in which the correct date of birth of the petitioner is noted as 10.3.1981. Ext.P4 is the birth certificate issued by the Consulate General of India, WP(C) NO. 31315 OF 2022 5 New York in which also the date of birth is noted as 10.3.1981 by virtue of the entry in the passport. Ext.P5 is the pan card in which also the date of birth is mentioned as 10.3.1981. Ext.P6 is the voters identity card in which also the date of birth is mentioned as 10.3.1981. Exts.P7, P8 and P9 are the affidavits filed by the mother, mother's brother and mother's cousin stating that the date of birth of the petitioner is 10.3.1981. As per Ext.P10, the application is rejected stating that the entries in the records are based on the hospital records. Challenging Ext.P10, this writ petition is filed. 3. Heard the learned counsel for the petitioner and Adv.R.Rohit, learned Standing Counsel who appeared for the respondent. 4. The counsel for the petitioner submitted that Ext.P10 order is unsustainable. The counsel relied the Division Bench judgment of this Court in **Secretary, Registrar of Births and Deaths v. Thomas Jacob and others** [2011 (3) KHC 389]. The counsel submitted that it is an admitted fact that WP(C) NO. 31315 OF 2022 6 there is no hospital records to prove the date of birth in the light of Ext.P2. Ext.P2 is issued by the successor hospital and the original hospital, Deepa Nursing home is not in existence now. The petitioner produced affidavits of three persons as evident by Exts.P7, P8 & and P9. According to the counsel, the formalities under Rule 11(2) of the Rules, 1999 are complied. Therefore, Ext.P10 order is unsustainable. The counsel appearing for the respondent supported Ext.P10 order. 5. This Court considered the contentions of the petitioner and the respondent. A reading of the Division Bench judgment of this Court in **Thomas Jacob's** case (supra), I think the point raised in this writ petition is covered in favour of the petitioner. In the light of the same, Ext.P10 will not stand. It will be better to extract the relevant portion of the judgment. “9. We have considered the submission made in the light of the pleadings and the material available before us. As held by this Court in Chalakudy Municipality v. Malavika, 2009 (4) KHC 713 : 2009 (4) KLT 714 : ILR 2009 (4) Ker. 591 : AIR 2010 Ker. 77 law does not contemplate a person to have a wrong name in the WP(C) NO. 31315 OF 2022 7 register or a mistaken identity in the register or to have wrong particulars regarding the date of birth, place of birth etc. It was also held that Act does not create or extinguish any right and that the Act is intended only to regulate the process and procedure of registration of births and deaths and the correction of any such entry. Further, this Court also held that once the Act permits such correction either in form or substance, the Rules are intended only to regulate the procedure and not to prohibit such correction. xxx xxx 11. In this case, it is the case of the 1st respondent that a mistake has been committed in recording the date of birth of his son Sri. Joshwa Thomas Jacob. To substantiate his case, he has produced Ext. P1 baptism certificate, Ext. P2 SSLC Book and Ext. P3 passport. Inspite of it, taking note of the requirements of R.11(2), the learned Judge directed the 1st respondent and his wife, being the parents of Sri. Joshwa Thomas Jacob, to submit a declaration in the form of an affidavit. The appellant has no case that the persons who are ordered to be given affidavits are not credible persons as contemplated in R.11 of the Rules. On the other hand, in Ext. P11, the only insistence of the appellant is that a report should be made by the hospital on whose report the birth was registered. A reading of Ext. P11 also shows that even according to the appellant, the Hospital is not functioning now. Therefore, it is virtually impossible to comply with the requirements of the circular relied on by the appellant. That apart, S.15 of the Act and R.11 lays down the manner in which an application for correction is to be made. It is the settled position WP(C) NO. 31315 OF 2022 8 of law that the prescriptions in a statutory rule cannot be modified by an executive order and if a statute requires something to be done in a particular manner, it shall be done in that manner alone. Rule does not require any report from the hospital as is insisted by the Chief Registrar of Births and Deaths in the circular, and therefore, the insistence on the production of a report from the hospital, which is defunct, in the facts of this case, is a requirement which is not only illegal but also impossible of compliance and the net result would be that the respondent is deprived of his statutory right to get the mistake corrected. Therefore, in our view, the learned Judge has rightly issued the directions about the manner in which declarations are to be made and the correction is to be carried out.” 6. Moreover, Rule 11(2) of the Rules, 1999 says that 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. In this case, the petitioner produced Exts. P7 to P9. Without considering the same, Ext.P10 is passed. According to me, it is WP(C) NO. 31315 OF 2022 9 a case in which the respondent ought to have corrected the date of birth in the records in the light of Rule 11(2) of the Rules, 1999. Therefore, this writ petition is to be allowed. Therefore, this writ petition is allowed in the following manner : ## 1) Ext.P10 is quashed. - 2) The respondent is directed to correct the date of birth based on Ext.P1 application and other supporting documents as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 31315 OF 2022 10 ## **APPENDIX OF WP(C) 31315/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION DATED 17-9-2022 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT - Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED 16-9-2022 ISSUED FROM THE DEEPA HOSPITAL, KANHANGAD - Exhibit P3 TRUE COPY OF THE CERTIFICATE DATED 24-6-1996 OF THE PETITIONER'S DAUGHTER SMT.SUREKHA PAI - Exhibit P4 TRUE COPY OF THE BIRTH CERTIFICATE DATED 20-62022 ISSUED FROM THE OFFICE OF THE CONSULATE GENERAL OF INDIA, NEW YORK - Exhibit P5 TRUE COPY OF THE PAN CARD OF THE PETITIONER'S DAUGHTER SMT.SUREKHA PAI - Exhibit P6 TRUE COPY OF THE VOTERS IDENTITY CARD OF THE PETITIONER'S DAUGHTER SMT. SUREKHA PAI - Exhibit P7 TRUE COPY OF THE AFFIDAVIT DATED 19-9-2022 OF THE PETITIONER SUBMITTED BEFORE THE RESPONDENT Exhibit P8 TRUE COPY OF THE AFFIDAVIT DATED 19-9-2022 OF THE PETITIONER'S BROTHER MR.N.SUBRAYA PAI SUBMITTED BEFORE THE RESPONDENT Exhibit P9 TRUE COPY OF THE AFFIDAVIT DATED 19-9-2022 OF MR.BALARAJ NAYAK SUBMITTED BEFORE THE RESPONDENT Exhibit P10 TRUE COPY OF THE ORDER DATED 22-9-2022 OF THE RESPONDENT