Janani Anna Babu and Others v. Registrar of Births and Deaths / Secretary, Kottayam Municipality; Tahsildar, Kottayam; Village Officer, Perumbaikadu, Kottayam, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 WP(C) NO. 15424 OF 2021** ## **PETITIONERS:** 1 JANANI ANNA BABU AGED 19 YEARS D/O. ANNIE BABU, PUTHEN PURAYIL, GANDHI NAGAR P.O, KOTTAYAM. 2 BABU VARGHESE PUTHEN PURAYIL, GANDHI NAGAR P.O, KOTTAYAM. 3 ANNIE BABU PUTHEN PURAYIL, GANDHI NAGAR P.O, KOTTAYAM. BY ADVS. SRI B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN SRI HARISANKAR N UNNI SRI SARANGADHARAN P. SMT.REMYA MURALI 1 THE REGISTRAR OF BIRTHS AND DEATHS/ SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL BHAVAN, KOTTAYAM - 688001. 2 THE TAHSILDAR KOTTAYAM - 688001. 3 THE VILLAGE OFFICER, PERUMBAIKADU, KOTTAYAM - 686016. R1 BY ADV SIBY CHENAPPADY R2 & R3 BY SRI VIPIN NARAYANAN ## **RESPONDENTS:** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.15424 of 2021 2 **“CR” T.R. RAVI, J.** **--------------------------------------------** W.P.(C)No.15424 of 2021 -------------------------------------------Dated this the 16[th] day of November, 2021 ## **JUDGMENT** A girl child was found abandoned in the ChennaiThiruvananthapuram Superfast Express on 7.5.2007 by the Railway Police, Kottayam. She was assessed to be about 3½ years old. The Police took the child to "Thanal", an organisation formed by the Young Women's Christian Association (YWCA), Kottayam, for looking after destitute women and children. The 3[rd] petitioner was the Secretary of the organisation. The matter regarding the abandonment of the child was reported in all leading dailies in order to find out her parents/relatives. There was no response. After medical examination and requisite treatment, the child was produced before the Judicial First Class Magistrate Court, Kottayam on 18.5.2007, who granted temporary custody of the child to the 3[rd] petitioner. On 18.8.2007, the Chief Judicial Magistrate passed an order directing to hand over the custody of the child to Infant Jesus Bhavan, Rajamattam, Umbidi P.O. The 3[rd] petitioner challenged the order of the Chief Judicial Magistrate in W.P.(C)No. 25900 of 2007. This Court issued an interim order staying the W.P.(C)No.15424 of 2021 3 operation of the order of the Chief Judicial Magistrate. The interim stay granted was extended until further orders by order dated 7.9.2007. The abandoned child is the 1[st] petitioner in this writ petition. 2. Meanwhile, an organisation formed by the 3[rd] petitioner by name "Santhwanam" was registered as a charitable trust and the trust obtained necessary license and permission from the Orphanage Control Board and the Child Welfare Committee, approving it as an orphanage. The 1[st] petitioner continued to live with petitioners 2 and 3 as their own daughter. Thereafter the writ petition was closed as infructuous on 17.3.2016. 3. As contemplated under the Rules, the 1[st] petitioner was subjected to medical examination for ascertaining her age. Her age was assessed as 5 years as 10.6.2008. This fact is evidenced by Exhibit P3 Medical Certificate issued by the Institute of Child Health and Children's Hospital, Medical College, Kottayam. She was admitted into Pallikoodam, a prestigious school where she completed her class X. Exhibit P4 is a certificate issued on 3.7.2018 by the school authorities showing the date of birth of the 1[st] petitioner as 1.1.2002. Exhibit P5 is the Certificate issued by the Council for the Indian School Certificate Examinations, New W.P.(C)No.15424 of 2021 4 Delhi showing that the 1[st] petitioner has completed her 10[th] standard with 83.2% marks in the main subjects excluding Physical Education for which she secured 88% marks. It can also be seen that her date of birth was registered with the Board is 1.1.2002. It is stated that she thereafter completed her 10+2 course and intends to apply for various courses including professional courses like LL.B. It is submitted that for the purpose of education, she is in need of a birth certificate and hence an application was filed before the 1[st] respondent requesting for the issuance of a Birth Certificate on the basis of Exhibits P3 and P4. Exhibit P6 is the application, which is not in the prescribed form. On 26.7.2021, the 1[st] respondent issued Ext.P7 rejecting Exhibit P6 application stating that the birth can be registered only on the basis of orders of Court, since there are no records regarding the place of birth, details of parents, date of birth, etc,. The petitioners have hence approached this Court, praying for a declaration that the 1[st] petitioner is entitled to be issued with a Birth Certificate showing the date of birth as 1.1.2002 and a nativity Certificate showing that she is a native of Kottayam. 4. Heard the counsel for the petitioners and the respondents. W.P.(C)No.15424 of 2021 5 5. Section 13 of the Registration of Births and Deaths Act 1969 (hereinafter referred to as the Act) and Rule 9 of the Kerala Registration of Births and Deaths Rules, 1999 (hereinafter referred to as Rules), which are the relevant statutory provisions read as follows: ## “ **S.13-Delayed Registration of Births and Deaths.-** (1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within 30 days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is given to the registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by the Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. (4) The provision of this Section shall be without prejudice to any action that may be taken against a W.P.(C)No.15424 of 2021 6 person for failure on his part to register any birth or death within the time specified therefore and any such birth or death may be registered during the pendency of any such action.” ## **“Rule 9. Authority for delayed registration and fee payable therefor:-** (1) Any birth, or death of which information is given to the Registrar after the expiry of the period specified in Rule 5, but within thirty days of its occurrence, shall be registered on payment of a fee of rupees two. (2) Any birth or death of which information is given to the registrar after thirty days but within one year of its occurrence, shall be registered only with the written permission of the officer prescribed in this behalf and on payment of late fee of rupees five. (3) Any birth or death which has not been registered within one year of its occurrence shall be registered only on an order of Magistrate of the first class or a Presidency Magistrate and on payment of late fee of rupees ten.” 6. Section 3(3) facilitates delayed registration of birth, on the basis of an order of the Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth. The manner in which the verification has to be carried out is not stated in the section. Rule 9 also does not lay down the procedure to be followed. The verification required is the factum of the birth W.P.(C)No.15424 of 2021 7 and not regarding the "date" on which the birth took place. The function is purely executive in character and is not an adjudication of the correctness of the date of birth stated in the request for registration. **[** See **Velu v. Madathi (AIR 1992 Madras 224)]** ). Neither Section 13 nor Rule 9 speaks about the delayed registration of the birth of a child who was abandoned and had grown up under the care of persons, who were entrusted with custody of the child by a Court of law. The purpose of providing for delayed registration is itself for ensuring that all births are registered, at least belatedly. The Statement and Objects of the Act states that the Central Government needs adequate and accurate countrywide registration data for the purpose of national planning, organising public health and medical activities and developing family planning programmes. As such, one of the primary purposes of the Act is to register the births, to ensure the correctness of the data regarding population. Noticing the fact that there are difficulties for registration of the birth of children who have not been legally adopted, the State Government had issued Circular No.17484/RD3/13/LSGD dated 20.5.2013, which provides for three methods that can be adopted in such cases. Considering the future and the mental status of the children in whose cases W.P.(C)No.15424 of 2021 8 there are no documents available to show a legal adoption, the Circular says that the Registrar can register such cases by following Section 13(3) of the Act and Rule 9(3) of the Rules, relating to delayed registration. Another method permitted is to proceed to register the birth relying on entries in documents like SSLC Book, Ration Card, Voter ID card, Aadhaar Card etc. The third method permitted is taking a decision after obtaining declaration from two credible persons regarding the birth. The Government was very much aware of the importance of public documents. Public documents like birth certificate, Official Gazette, Aadhaar card, election card, etc., the same enjoy legal presumption of its correctness in terms of explicit provisions contained in Chapter V of the 1872 Act.[See **Jigya Yadav v. CBSE** reported in **(2021) 7 SCC 535)].** 7. The issue of registration of birth of orphan/abandoned children was specifically addressed by the Central Government in its Circular No.7/4/2013-VS(CRS) dated 3.7.2015 and guidelines have been issued to the Chief Registrars/Additional/Deputy Chief Registrars of Births and Deaths of all States and Union Territories. As per the guidelines, if the place of birth of the child is not known, the place where the orphanage is located or the child is residing is W.P.(C)No.15424 of 2021 9 to be treated as the "place of birth" of the child. It is further directed that in case the date of birth of the child is not known, the age may be determined by the Chief Medical Officer having jurisdiction over the area where the orphanage is located or the child is residing and a "probable date of birth" assigned, which can be entered as date of birth in the birth reporting form. The guidelines says that in cases of delayed registration, the procedure laid down in Section 13(1),(2) and (3) may be followed and that the concerned Registrar of Births and Deaths having jurisdiction over the area where the orphanage is located or where the orphan is residing shall register the birth reported based on the particulars provided in the Birth Reporting form. 8. The Director of Panchayats has also thereafter issued Circular No.B1-15343/2017 whereby amended directions were issued for registration of births and deaths. Clause 6.7 of the Circular says that in cases of children who are living under the care of adoptive parents for several years and no documents are available to prove legal adoption, the registration can be carried out following the directions contained in circular No.17484/RD3/13/LSGD dated 20.5.2013. 9. In view of the statutory provisions and the circulars W.P.(C)No.15424 of 2021 10 issued by the Central and State Government, the reasoning stated in Ext.P7 for rejecting the request for registration is not legally justified. The 1[st] respondent ought to have considered the fact that there are no details available regarding the parents of the 1[st] petitioner, the exact date of her birth or the place where she was born and there is no manner in which such details can be provided. The fact that the Central and State Governments were aware that such situations will arise, is evident from the circulars issued in 2013, 2015 and 2017. The attempt ought to have been to ensure that a birth is registered following the guidelines, rather than to refuse registration on totally unsustainable reasons. 10. In the result, the writ petition is allowed. The petitioners shall submit a fresh application for registration of the birth of the 1[st] petitioner in accordance with Circular No.7/4/2013-VS(CRS) issued by the Office of the Registrar General, India, in the Ministry of Home Affairs, Government of India on 3.7.2015 before the 1[st] respondent. The 1[st] respondent is not obliged to forward the application for orders from the concerned Revenue Divisional Officer under Section 13(3) of the Registration of Births and Deaths Act, 1969 and is instead directed to follow either of the other two options stated in Circular No.17484/RD3/13/LSGD dated W.P.(C)No.15424 of 2021 11 20.5.2013, i.e. , proceed to register on the basis of the details submitted by the petitioners supported by the public documents like the school leaving certificate, Ext.P3 medical certificate issued by the Medical College, Kottayam and the Aadhaar card issued to the 1[st] petitioner **OR** to register after obtaining declarations from two credible persons. Necessary orders shall be issued within one month from the date of receipt of the application from the petitioners. The petitioners shall produce a copy of this judgment along with their application, for easy reference and compliance. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.15424 of 2021 12 ## **APPENDIX OF WP(C) 15424/2021** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER IN WP(C) NO. 25900/2007 DATED 23.08.2007. Exhibit P2 TRUE COPY OF THE ORDER IN WP(C) NO. 25900/2007 DATED 7.9.2007 Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 10.06.2008 ISSUED BY INSTITUTE OF CHILD HEALTH & CHILDREN'S HOSPITAL MEDICAL COLLEGE, KOTTAYAM. - Exhibit P4 TRUE COPY OF THE CERTIFICATE DATED 3.7.2008 ISSUED BY PALLIKOODAM. - Exhibit P5 TRUE COPY OF THE STATEMENT OF MARKS NO. TF 30192729 ISSUED BY COUNCIL FOR INDIAN SCHOOL CERTIFICATE EXAMINATIONS, NEW DELHI. - Exhibit P6 TRUE COPY OF THE APPLICATION FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED 23.07.2021. Exhibit P7 TRUE COPY OF THE ORDER NO.B & D-14658/2021 DATED 26.07.2021 OF THE 1ST RESPONDENT. Exhibit P8 TRUE COPY OF THE APPLICATION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 23.07.2021. Exhibit P9 TRUE COPY OF THE AADHAAR CARD NO. 5300 7025 0408 OF THE 1ST PETITIONER. EXHIBIT R1(A) TRUE COPY OF CIRCULAR No.B1-15343/2017 DT.10.5.2017 OF THE CHIEF REGISTRAR OF BIRTHS AND DEATHS.