John M. Varghese v. State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 ``` ## `WP(C) NO. 19677 OF 2023` ## `PETITIONER:` ``` JOHN M. VARGHESE, AGED 35 YEARS S/O VARGHESE, MOOLATHUNDYIL, CHENGANNOOR P.O, ALAPPUZHA (DIST.), PIN – 689505 ``` ``` BY ADVS.JACOB P.ALEX JOSEPH P.ALEX AMAL AMIR ALI MANU SANKAR P. RUTH K. ABY ``` ## `RESPONDENTS:` - `1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN – 695001` - `2 REGISTRAR OF BIRTHS AND DEATHS, (SECRETARY, KUMILY GRAMA PANCHAYAT), OFFICE OF KUMILY GRAMA PANCHAYAT, KUMILY PO, IDUKKI (DIST.),, PIN – 685509` - `3 KUMILY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF KUMILY GRAMA PANCHAYAT, KUMILY PO, IDUKKI (DIST.), PIN – 685509` ``` BY ADV LIJI.J.VADAKEDOM ``` ## `OTHER PRESENT:` ## `GP SMT PARVATHY K` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C)No.19677/2023 ``` ``` -:2:- ``` Dated this the 5[th] day of July,2023 ## **J U D G M E N T** The writ petition is filed to direct the second respondent to correct the petitioner's wife’s date of birth in her birth certificate. 2. The petitioner’s case is that he is married to Lincy Joy, who is born on ‘24.05.1987’, as reflected in Exts P2 to P4(a) documents. Unfortunately, in Ext P5 birth certificate issued by the second respondent, date of birth written as Lincy Joy’s is wrongly ‘25.05.1987’, instead of ‘24.05.1987’. Although the petitioner’s wife submitted Ext P6 application and the petitioner submitted Ext P7application, along with Exts P7(a) & P7(b) affidavits, seeking for the correction of Lincy Joy’s date of birth, the second respondent has rejected the application. The principal reason for rejection is that, as per the gynec register maintained by the hospital where Lincy Joy was born, ``` W.P.(C)No.19677/2023 ``` ``` -:3:- ``` her date of birth is recorded as ‘25.05.1987’. The petitioner’s wife requires a corrected date of birth certificate for her employment purpose. The stand of the second respondent in Ext P8 is arbitrary and unreasonable. Hence, the writ petition. 3. The second respondent has filed a counter affidavit, inter alia, contending that, on receipt of the above applications, an enquiry was conducted. In the enquiry, it is revealed that, as per the records maintained by St. Augustine’s Hospital, Springvally, Kumily, Lincy Joy was born on ‘25.05.1987’ and not on ‘24.05.1987’, as alleged in the writ petition. It was on the basis of the said records, that Ext P8 order is passed. The second respondent had also referred the matter to the Deputy Director of Panchayat for a clarification, who by Ext R2(e), has reported that Lincy Joy’s application for correction of the date of birth certificate cannot be considered on the basis of an affidavit filed by her parents. Hence, the writ petition ``` W.P.(C)No.19677/2023 ``` ``` -:4:- ``` may be dismissed. 3. Heard; Sri. Jacob P.Alex, the learned counsel appearing for the petitioner and Sri. Liji.J.Vadakedom, the learned standing counsel appearing for the second respondent. 4. The petitioner has averred that Lincy Joy was born on 24.05.1987. Exts P2 to P4(a) also reveal that Lincy Joy was born on 24.05.1987. Lincy Joy’s parents have sworn Exts P7(a) &P7(b) affidavits stating that their daughter was born on 24.05.1987. It is only in Ext R2(c) communication issued by the St. Augustine’s Hospital that shows Lincy Joy was born on 25.05.1987. 5. In **Secretary, Registrar of Births and Deaths v. Thomas Jacob and Others** [2011(3) KHC 389], a Division Bench of this Court has categorically held that in the case of disputes regarding the date of birth, especially where there are no records, the same can be resolved by making the parents of the person swearing affidavits regarding the date of birth of their ``` W.P.(C)No.19677/2023 ``` ``` -:5:- ``` child. 6. On an appreciation of the pleadings and materials on record, particularly Exts P2 to P4, P7(a) & P7(b) and the law laid down in **Thomas Jacob** (supra), I am definitely of the view that the assertion made by the petitioner is genuine and true. I arrive at the said finding because Lincy Joy was born on the intervening night of 24.05.1987 and 25.05.1987. It is only the hospital record which shows that Lincy Joy’s date of birth as 25.05.1987. This I perceive is a mistake committed by the hospital because Lincy Joy was born just before midnight on 24.05.1987 and the hospital authorities might have entered the details in their register on the following morning. 7. In the above factual background, I accept the affidavits sworn to by Lincy Joy’s parents, which stand corroborated by Exts P2 to P4. Thus, I am convinced that the petitioner has established that there is a mistake in Ext P5 birth certificate, which warrants to ``` W.P.(C)No.19677/2023 ``` ``` -:6:- ``` be corrected. Resultantly, in exercise of the extra-ordinary powers of this Court under Article 226 of the Constitution of India, I allow the writ petition as follows: - (i) Exts P8 & R2(e) are set aside. - (ii) Exts P6 & P7 applications stand allowed. - (iii) Lincy Joy’s date of birth in Ext P5 birth certificate stands corrected as ‘24.05.1987’ instead of ‘25.05.1987’. - (iv) The second respondent is directed to issue a fresh date of birth certificate to the petitioner, showing the date of birth of Lincy Joy as ‘24.05.1987’. Sd/- ## **C.S.DIAS,JUDGE** DST/05.07.23 //True copy// P.A.To Judge ``` W.P.(C)No.19677/2023 ``` ``` -:7:- ``` ## `APPENDIX` - `PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE BEARING NO. 89/2015 DATED 17-03-2015 ISSUED FROM THE OFFICE OF PULIYOOR GRAMA PANCHAYAT` - `EXHIBIT P2 TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE BEARING NO. C 340270 ISSUED BY THE GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA DATED NIL` - `EXHIBIT P3 TRUE COPY OF THE IDENTITY CARD BEARING NO. SVC 0091926 ISSUED BY THE ELECTION COMMISSION OF INDIA DATED 23.03.2010` - `EXHIBIT P4 TRUE COPY OF THE INDIAN PASSPORT BEARING NO. T 4485148 ISSUED FROM THE OFFICE OF THE PASSPORT OFFICER, COCHIN DATED NIL` - `EXHIBIT P4(A) TRUE COPY OF BAPTISM CERTIFICATE NO. 342 DATED 18-06-2005 ISSUED BY VICAR, ST. MARY'S MALANKARA CATHOLIC CHURCH, CHAKKUPALLAM, IDUKKI` - `EXHIBIT P5 TRUE COPY OF THE BIRTH CERTIFICATE OF LINCY JOY DATED 12.06.2023 ISSUED FROM THE OFFICE OF 2ND RESPONDENT` - `EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 02-062023 SUBMITTED BEFORE THE SECRETARY, KUMILY GRAMA PANCHAYAT ALONG WITH RECEIPT` - `EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER (UNDATED) BEFORE THE KUMILY GRAMA PANCHAYAT ALONG WITH RECEIPT` - `EXHIBIT P7(A) TRUE COPY OF THE DECLARATION SUBMITTED BY MR. JOY BEFORE THE SECRETARY, KUMILY GRAMA PANCHAYAT DATED NIL` - `EXHIBIT P7(B) TRUE COPY OF THE DECLARATION SUBMITTED BY MRS. ANNAMMA BEFORE THE SECRETARY, KUMILY GRAMA PANCHAYAT DATED NIL` - `EXHIBIT P8 TRUE COPY OF THE ORDER DATED 08.06.2023` ``` W.P.(C)No.19677/2023 ``` ``` -:8:- ``` ## `ISSUED BY 2ND RESPONDENT` ``` EXHIBIT P9TRUE COPY OF THE ATWS NURSING VISA REQUIREMENTS DATED 29-05-2023 ``` - `RESPONDENT EXHIBITS` - `EXHIBIT R2(A) A COPY OF THE APPLICATION DATED NIL RECEIVED ON 07/06/2023 AT THE OFFICE OF THE 3RD RESPONDENT PANCHAYAT` - `EXHIBIT R2(B) A COPY OF THE APPLICATION DATED 07-06-2023 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE ST. AUGUSTINE'S HOSPITAL SPRING VALLEY KUMILY` - `EXHIBIT R2(C) A COPY OF THE COMMUNICATION DATED 08-062023 ISSUED BY THE ADMINISTRATOR ST. AUGUSTINE'S HOSPITAL SPRING VALLEY, KUMILY` - `EXHIBIOT R2(D) A COPY OF THE REQUEST FOR CLARIFICATION DATED 13/06/2023 BEFORE THE DEPUTY DIRECTOR OF PANCHAYAT, IDUKKI SUBMITTED BY THE 2ND RESPONDENT` ``` EXHIBIT R2(E)A COPY OF THE REPLY DATED 22-06-2023 ISSUED BY THE JOINT DIRECTOR OF LSGD, IDUKKI ```