Indira Sumathi v. Registrar of Births and Deaths, Office of the Registrar of Births and Deaths, Thiruvananthapuram Corporation; and Secretary, Chirayinkeezhu Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **WP(C) NO. 6467 OF 2021** ## **PETITIONER:** **INDIRA SUMATHI AGED 64 YEARS D/O. SUMATHI RAGHAVAN, 8/93 KONNAVILAKAM, KIZHAKKUM BHAGAM, CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM-695 304.** **BY ADVS. M.BALAGOVINDAN SRI.S.SUDARSANA BABU SRI.A.ANOOP** ## **RESPONDENTS:** - **1 REGISTRAR OF BIRTHS AND DEATHS OFFICE OF THE REGISTRAR OF BIRTH AND DEATH, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM-695 039.** - **2 SECRETARY** **OFFICE OF THE CHIRAYINKEEZHU GRAMA PANCHAYAT, CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM-695 304.** **R2 BY ADV M.R.SASITH GOVT. PLEADER SRI. MANU RAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.6467/2021 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 5[th] day of July, 2021**_ The petitioner seeks to direct the respondents to issue a non-availability certificate of birth pertaining to the petitioner under Section 17(4) of the Registration of Births and Deaths Act within a time limit fixed by this Court. 2. The case of the petitioner in short, is as follows: The petitioner is the mother of Sanju Sadanandan who was born on 29.05.1982. The petitioner delivered the child at her home. His date of birth in the School Admission Register is 29.05.1982. In the Passport, Driving licence and Election Commission identity card, the date of birth is shown as 29.05.1982. As the petitioner's son wanted to renew his passport, a certificate from the office of Births and Deaths Registrar became necessary. 3. The petitioner submitted an application on 13.01.2020. The petitioner was informed that there is a birth W.P.(C) No.6467/2021 : 3 : recorded by Thiruvananthapuram Corporation in respect of a child with the same names of the mother and father, but with a different date of birth. The said registration is disclosed by Ext.P5. The petitioner filed Ext.P7 affidavit before the 1[st] respondent stating that her son was born on 29.05.1982 at home in Chirayinkeezhu. In Ext.P5 Birth Certificate, it has been stated that one Indira delivered a male child on 26.02.1982 at SAT Hospital, Thiruvananthapuram. For the said reason, the 1[st] respondent is not issuing Non-availability Certificate to the petitioner. 4. The 2[nd] respondent filed a counter affidavit and contested the writ petition. The 2[nd] respondent stated that on receiving application for Non-availability Certificate from the petitioner, the 2[nd] respondent made enquiry. From the enquiry, the 2[nd] respondent came to know that the birth of the petitioner's son has already been registered with slightly changed address and a different date, as can be seen from Ext.P5. Since the son of the petitioner was born within the jurisdiction of Thiruvananthapuram Corporation, only a W.P.(C) No.6467/2021 : 4 : Registrar under the said Corporation is competent to issue any certificate. The petitioner will have to approach the Registrar of Births and Deaths, Thiruvananthapuram Corporation for getting Non-availability Certificate, under Rule 13 of the Registration of Births and Deaths Rules, 1999. 5. The learned counsel for the petitioner urged that the petitioner's son was born at home in Chirayinkeezhu. Therefore, Ext.P5 Birth Certificate issued by the Thiruvananthapuram Corporation, though bears same parental names, cannot be in respect of the petitioner's son. The learned counsel for the petitioner further contended that in the light of the judgment of this Court in _**Kausalya P.K. v. Secretary, Kaiparambu Grama Panchayat and others** [ILR 2019 (3) Ker 225]_ , only a Magistrate of the First Class is empowered to make enquiry in the matter of Births and Deaths and the 1[st] respondent is bound to issue a Nonavailability Certificate if the birth is not seen recorded in the office of the 1[st] respondent. 6. I have heard the learned counsel for the petitioner W.P.(C) No.6467/2021 : 5 : and the learned Standing Counsel representing respondents 1 and 2. 7. In the judgment in _**Kausalya P.K.**_ (supra), this Court held that Section 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 W.P.(C) No.6467/2021 : 6 : 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 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- W.P.(C) No.6467/2021 : 7 : 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 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_ ”. Sd/- **N. NAGARESH, JUDGE** aks/01.07.2021 W.P.(C) No.6467/2021 : 8 : ## **APPENDIX OF WP(C) 6467/2021** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE 3RD PAGE OF S.S.L.C. BOOK. EXHIBIT P2 TRUE COPY OF THE PASSPORT 185/2011 TO 3/5/2021. EXHIBIT P3 TRUE COPY OF THE DRIVING LICENSE OF SANJU. EXHIBIT P4 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION. EXHIBIT P5 THE BIRTH CERTIFICATE OF CHILD DATED 26.2.1982 THE COMMUNICATION OF THE FIRST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT DATED 3.7.2020. EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT DATED 8.10.2020.** ## **RESPONDENT'S EXHIBITS:** **R2(A) TRUE COPY OF THE CIRCULAR NO.B13456/2017 ISSUED BY THE DIRECTOR OF PANCHAYAT, TRIVANDRUM DT 10.5.2017.**