KALLARAKKAL DELNA MARIYA LENIN v. KODUNGALLOOR MUNICIPALITY and REGISTRAR OF BIRTHS AND DEATHS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932** **WP(C).No. 14350 of 2010(P)** **--------------------------------------** **PETITIONER:** **-------------------** **KALLARAKKAL DELNA MARIYA LENIN, D/O.KALLARAKKAL THOMAS LENIN, AGED 7 YEARS, KALLARAKKAL HOUSE, POYYA (PO), TRICHUR DISTRICT, REPRESENTED BY THE GUARDIAN AND MOTHER LENIN SHIJI.** **BY ADV. SRI.AJITH KRISHNAN.** ## **RESPONDENTS:** **------------------------** **1. THE KODUNGALLOOR MUNICIPALITY, REPRESENTED BY SECRETARY, KODUNGALLUR, TRICHUR DISTRICT.** **2. THE REGISTRAR OF BIRTH AND DEATH, KODUNGALLUR MUNICIPALITY, KODUNGALLUR, TRICHUR DISTRICT.** ## **R1 & R2 BY ADV. SRI.M.P.ASHOK KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON 15/07/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.14350/2010-P:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE BIRTH CERTIFICATE ISSUED TO THE PETITIONER BY THE RESPONDENTS.** **EXT.P.2: COPY OF THE PASSPORT OF THE PETITIONER'S FATHER.** **EXT.P.3: COPY OF THE PASSPORT ISSUED TO THE PETITIONER'S MOTHER.** **EXT.P.4: COPY OF THE REPRESENTATION DTD. 20/03/2010 SUBMITTED BEFORE THE R.2.** **EXT.P.5: COPY OF THE JUDGMENT DTD. 07/04/2010 IN W.P.(C).NO.12139/2010.** **EXT.P.6: COPY OF THE ORDER NO. PH2-5652/2010 DT. 21/04/2010 ISSUED BY THE R.2.** **EXT.P.7: COPY OF THE CIRCULAR NUMBER 68413/RD3/2009/LSGD DTD. 21/01/2010.** **EXT.P.8: COPY OF THE JUDGMENT DTD 07/04/2010 IN W.P.(C).NO.12256/2010.** ## **EXT.P.9: COPY OF THE BIRTH CERTIFICATE DTD. 20/05/2010 ISSUED BY THE PORATHISSERY GRAMA PANCHAYATH.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.A: COPY OF THE RELEVANT PAGES OF THE SSLC BOOK SHOWING THE NAME OF SMT. SHIJI RAPHEL.** **EXT.R1.B: COPY OF THE SCHOOL REGISTER SHOWING THE NAME OF SRI. K.T. LENIN.** **EXT.R1.C: COPY OF THE STATUTORY BIRTH REPORT MAINTAINED IN THE MUNICIPALITY SHOWING THE NAME OF THE CHILD, DELNA MARYA K.L.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 14350 of 2010-P** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 15th day of July, 2010.** ## **JUDGMENT** The request for correction of entries in the birth register having been rejected by the second respondent, Registrar of Births and Deaths of Kodungallur Municipality, the petitioner has filed this writ petition through her guardian and mother. 2. The petitioner is a minor girl aged 7 years, represented by her mother. In the certificate issued by the Municipality which is produced as Ext.P1, her name is shown as “Delna Maria K.L.”, the name of father is shown as “ Lenin K.T.” and mother's name is shown as “Shiji K.R.”. Exts.P2 and P3 are copies of the relevant pages of the passport issued to the parents of the petitioner. Therein, the father's name is shown as “Kallarakkal Thomas Lenin” and that of the mother “Lenin Shiji”. They are employed and settled in Italy. The petitioner is pursuing her studies in Kerala now and the parents want her to be taken to Italy next year. She requires passport for going abroad. Since the entries in the birth register may not tally with the passport of the parents and also the entries should contain the expansion of the initials of the petitioner, an application was wpc 14350/2010 2 filed seeking correction of various entries. 3. Pursuant to the directions issued in W.P.(C) No.12139/2010 Ext.P6 order was passed by the second respondent. In Ext.P6 the reasons stated are mainly that: as the minor girl is studying in Class II and going by the circular issued by the Government dated 21.1.2010, the change of name can be made only once prior to the admission of the minor in the school and therefore the application cannot be allowed. Para 7 of the circular is also relied upon to hold that even though the current entries contain the initials, unless the real name is one which is inclusive of initial and sur name, no correction can be made. 4. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. 5. The respondents have filed a statement as well as a counter affidavit. 6. Learned counsel for the petitioner submitted that the application of the petitioner ought to have been allowed in the light of the power conferred under Section 15 of the Registrar of Births and Deaths Act, 1969 and the Rules therein and in the light of the decisions of this Court rendered in similar cases which permit such correction. Reliance is placed on the decisions of this Court in **Meena v. Corporation of Cochin** (2004 (2) KLT wpc 14350/2010 3 1118), **Sivanandan v. Registrar of Births and Deaths** (2007 (3) KLT 721), **Varghese v. Director of Panchayats** (2008 (2) KLT 278) and **Chalakudy Municipality and another v. Malavika and another** (ILR 2009 (4) Ker. 591). It is pointed out that unless the corrections are effected, the petitioner will not be able to reach her parents, as the laws in that country insists for such proper certificates including expansion of the initials. It is submitted that the names of the parents as per the passport could be included in the birth register. It is further pointed out that the birth certificate of the petitioner's brother Danny Lenin contains all the details. Therein, the name of the father is given as “Kallarakkal Thomas Lenin”, mother's name as “Lenin Shiji” and that of the boy as “Danny Lenin”. 7. The circular issued recently by the Government has been produced as Ext.P7. Para 7 of the circular states that if the real name includes initial and sur name, the same could be entered in the birth register. This is also relied upon by the learned counsel for the petitioner to show that what is sought for is permissible as per the circulars also. 8. Learned counsel for the respondents submitted that going by the entries in the school register of the parents, their names have been shown as “K.T. Lenin” and “Shiji Raphel”. There is no provision to change the name wpc 14350/2010 4 in the birth register. Only an error or mistake in the birth register alone can be corrected. 9. Section 15 of the Registration of Births and Deaths Act confers power for correction or cancellation of entries in the register of births and deaths. Going by the same, if an entry in the birth register is erroneous in form or substance, the Registrar is having power to correct the same. The question is whether a mistake or error in the details in the birth register alone is liable to be corrected. This question is no longer res integra. The recent decision of a Division Bench of this Court in **Malavika's case** (ILR 2009 (4) Ker. 591) has elaborately considered this question. After referring to the legal provisions and the circular dated 24.3.11997, issued by the Chief Registrar, it was held thus in para 4: “Going by the purpose of the enactment and the scheme for registration and for correction in the entries therein, it is unambiguously clear that corrections either in form or substance is permissible. The only pre-condition is that the Registrar should be satisfied that the entry in the register regarding birth or death was erroneous in form or substance or the same has been fraudulently or improperly made. The entry in the register means the entries on the name and the particulars regarding the relationship, place and date. If the correction is sought within five years, the satisfaction need only be at the level of the Registrar and if the correction is wpc 14350/2010 5 sought to be made after five years, the corrections can be made only on the satisfaction of the Chief Registrar. The identity of the person concerned is the crucially relevant factor, as far as correction of the name is concerned and as far as the correction of the date, place and other particulars are concerned, in case there had been any mistake, in the original entry and if the Registrar is satisfied that the same is erroneously entered, he has to exercise his power to permit the correction. The law does not contemplate a person to have a wrong name in the register or a mistaken identity in the register or to have wrong particulars regarding the date, place etc. in the register of birth or death. It is also to be noted that the Registration of Births and Deaths Act, 1989 does not create or extinguish any right; the Act is intended only to regulate the process and procedures of registration of births and deaths and the correction of any such entry. 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. The subordinate legislation by way of rules, notifications, circulars etc. cannot restrict the scope of the plenary legislation. Conversely they cannot expand the scope either as far as the correction of the entries in the register of birth or death is concerned. Section 15 only contemplates that the Registrar should be satisfied as to the mistake in the entry. The section clearly states that the correction can either be in the form or substance also. Rule 11 would also indicate that once the Registrar is moved for correction of any entry in the register of birth or death, it is mandatory on his part to wpc 14350/2010 6 enquire into the matter and once he is satisfied that the entry is erroneous, the rule mandates that the correction should be made as required under Section 15 of the Act.” Therefore, as far as the correction of name of the person is concerned, the identity is the crucial relevant factor. Significantly, the Bench was of the view that the law does not contemplate a person to have a wrong name in the register or a mistaken identity in the register or to have wrong particulars regarding the date, place etc. in the register of birth or death. Therein, going by the facts of the case, the Municipality was approached for correction of the name of the father in the register of births. The petitioner's father's name was 'Sajeev Velappan Nair', but the entry in the register was 'Sajeev N. Nair.' A fresh certificate was directed to be issued with the change of name of the father as sought for. The said direction was upheld by the Division Bench. Therefore, it is very clear that going by the facts of the said decision also, such changes with regard to the name could be entered in the birth register. 10. In **Meena's case** (2004 (2) KLT 1118, the situation considered was almost identical to the one available herein. Therein also, the parents were in possession of passports which showed the names in expansion and the parents are working outside India. The father's name, viz. 'T. Ajith wpc 14350/2010 7 Kumar' was sought to be corrected as shown in the passport, viz. 'Ajith Kumar Thykoodathil' and the name of the mother and the child also were sought to be corrected. This Court considered the issue in the light of the provisions of circulars as well as Section 15 of the Act and Rule 11 of the relevant rules. It was held in para 11 that “Thus it is clear that in appropriate cases, conforming to the procedure, corrections are indeed permitted.” Regarding the stipulations contained in the circulars, this Court was of the view that there is ample discretion for the authorities concerned and that the circulars will not in any way inhibit the discretion that has been vested with the authorities under the Rules. Finally, it was held in para 16 thus: “When the basic objectives itself is accurate statistics, the minor details regarding the name and similar entries have not much of relevance, from the point of view of the enactment. As pointed out by counsel for the petitioner, because of computerization and globalization, even small errors which might have been inconsequential during the past decades presently pose problems from unexpected quarters. Accuracy in the entries pertaining to Birth Register was to be ensured, so as to ward off such situation. Therefore, effort should be there on the part of the authorised officers to see that assistance is extended to persons who have genuine grievances. Instead of a technical approach, a realistic and wpc 14350/2010 8 helpful attitude is always expected, subject to statutory prescriptions. The standing counsel agree with this proposition.” Accordingly, it was ordered that a correction as requested in respect of not only the name of the child as well as of the description of the parents, may be effected. This is evident from para 18 of the judgment. 11. **Varghese's case** (2008 (2) KLT 278) concerns a case of correction of the name of the child itself. There, the name that was entered in the register was 'Neenu Varghese.' It was sought to be corrected as 'Niya Varghese.' An objection was taken by the respondents therein that such a correction cannot be allowed. After considering the power conferred under Section 15 of the Act, it was held as follows: “The power of the Registrar to make corrections in the names of persons by virtue of S.15 after conducting enquiry as envisaged by R.12 of the Registration of Births and Deaths Rules 1990 cannot be in doubt especially in the light of the Circular No.B1-2815/2007 dated 07/11/2007 of the Chief Registrar, which is binding on the 2[nd] respondent cannot be in doubt. What the second respondent contends is that he is not prepared to construe the original entry as erroneous since the same was made on the basis of a joint application filed 5 years after the child's birth was reported by the hospital to the Corporation. To err is human and when the father of the child obviously with the concurrence of his wife, the mother of the child, who were joint applicants before the Corporation wpc 14350/2010 9 declares that the entry of the child 's name entered on the basis of the joint application is erroneous, I do not find any special circumstances attending on this case to suspect the _bona fides_ of the request of the petitioner.” A direction was issued to change the name as 'Niya Varghese'. 12. In **Sivanandan's case** (2007 (3) KLT 721), it was held that “the Registrar would be well within authority to act under Section 15 and correct an error if it is an error in “substance” without insisting that such error can be corrected only if it is a formal or a clerical one. In doing so, in view of the absence of any guidelines in that regard, by way of primary or subordinate legislation, the Registrar, being a statutory and public authority, is bound to act in terms of justice, equity and good conscience and to follow the principles of natural justice and other recognised canons for the exercise of statutory power.” Therefore, the power is available to correct an error if it is an error in substance also. 13. In the light of the principles discussed in the above decisions and particularly in **Meena's case** (2004 (2) KLT 1118) and **Varghese's case** (2008 (2) KLT 278) wherein the correction in the names were directed to be allowed by this Court, learned counsel for the petitioner is justified in submitting that power is therefore explicit for allowing such a correction. wpc 14350/2010 10 The reasons stated in Ext.P6 therefore cannot survive. The first reason shown is that correction in the name of the child can be made only prior to the admission of the child in the school. The very same circular was considered by this Court in **Shipna Jose v. Registrar** (2010 (2) KLT 978) and it was held that the stipulations in the said circular in that regard is not a correct understanding of the dictum laid down in **Girijan v. Registrar of Births and Deaths** (2003 (2) KLT 22). It was held that the circular, especially para 1 will not stand in the way of the Registrar considering the application on its merits merely because it was submitted after joining the school. Actually, this Court noticed that one sentence in the heading of the headnote of the judgment in **Girijan's case** (supra) has been wrongly relied upon while issuing the circular dated 21.1.2010. On that ground itself, the first reason stated in Ext.P6 cannot be supported. 14. The second reason stated is that only if the real name includes initial and sur name, then alone the corrections can be made. Herein, the stipulations in para 7 of the circular show that if the real name includes initials and sur name, the same can be entered in the register. As far as the petitioner's case is concerned, at the relevant time when the entry was made, the names including that of the petitioner and her parents were wpc 14350/2010 11 entered with initial. When the circular, as on today, permits inclusion of initials along with sur name, merely because at the time when the entry was made that was not done, will not result in denial of the benefit to the petitioner. 15. Herein, evidence is available to justify the correction in the light of the entries in the passport of the parents, as Exts.P2 and P3. The petitioner is justified in relying upon Ext.P9, the certificate issued in the name of her brother who was born on 12.9.2000 whereas the petitioner was born on 28.6.2002. The correction sought for herein tallies with the name of the parents entered in Ext.P9. Of course, that was done by the Registrar of Births and Deaths of another Panchayat. This can also be considered by the second respondent. This is for the reason that the children should not suffer in future because of the absence of details in the birth register. 16. Even though learned counsel for the respondents submitted that the correction of name of the mother cannot be made as sought for, in the light of the fact that what is sought for to be added is only the name of the husband along with her name which is the usual practice that is adopted after the marriage, the same can be allowed. As far as the name of the father is concerned, his name is shown as Lenin K.T. and the correction sought for as 'Kallarakkal Thomas Lenin' is only expansion of the initials. wpc 14350/2010 12 As regards the petitioner, the correction sought for is addition of the sur name, evidently by expansion of the initials “K.L.”. For all these reasons, I am of the view that the second respondent was not right in rejecting the application as per Ext.P6. Therefore, Ext.P6 is quashed. The corrections can be allowed in the light of the principles stated by this Court in the decisions quoted above. There will be a direction to the second respondent to consider the application in the light of the findings rendered above and appropriate orders will be passed and a revised birth certificate will be issued to the petitioner within three weeks from the date of production of a copy of this judgment. The writ petition is allowed as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**