Suresh C Varughese v. State of Kerala and others (WP(C) No. 20243 of 2023)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 ``` ## **`WP(C) NO. 20243 OF 2023`** ## **`PETITIONER:`** ``` SURESH C VARUGHESE, AGED 46 YEARS S/O CV VARUGHESE, CHAKKUTHARA(H),MAKKAPPUZHA PO, RANNI, PATHANAMTHITTA (DIST), PIN - 689676 BY ADVS. AMAL AMIR ALI MANU SANKAR P. ``` ## **`RESPONDENT:`** ``` 1STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF OVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 ``` ``` 2REGISTRAR OF BIRTHS AND DEATHS, (SECRETARY, THOTTAPPUZHASSERY GRAMA PANCHAYAT) OFFICE OF THOTTAPPUZHASSERY GRAMA PANCHAYAT, THIRUVALLA TALUK, PATHANAMTHITTA (DIST.),, PIN - 689549 3THOTTAPPUZHASSERY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THOTTAPPUZHASSERY GRAMA PANCHAYAT, THIRUVALLA TALUK, PATHANAMTHITTA (DIST.),, PIN - 689549 ``` ``` BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH(D/1420/2014) NIMESH THOMAS(K/1324/2018) ``` ## **`OTHER PRESENT:`** ``` GP-SRI.SMT.PARVATHY K. ``` 2 ## W.P.(C) No. 20243 OF 2023 ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No. 20243 OF 2023 3 ## **JUDGMENT** The petitioner made Exhibit P7 application for correction of Date of Birth in the Birth Certificate before the 2[nd] respondent, the Registrar of Births and Deaths. The same was rejected by the 2[nd] respondent vide Exhibit P8 on the ground that the gynec register of the hospital where the petitioner was born is not produced. According to the petitioner, the gynec register is not available as the hospital is defunct. The petitioner states that he was born on 05.08.1976 and the date of birth entered in Exhibit P2 Aadhaar Card, Exhibit P3 Passport and Exhibit P4 Secondary School Leaving Certificate is 05.08.1976. However in Exhibit P6 Birth Certificate issued by the 3[rd] respondent, the Date of Birth has been entered as 05.09.1976. The 2[nd] respondent has rejected the petitioner’s application for correction of entries in Ext. P6 certificate since the gynec register is not produced in terms of Rule 8 of the Registration of Births and Deaths Rules, 1999. W.P.(C) No. 20243 OF 2023 4 2. Heard Sri. Amal Amir Ali, the learned counsel for the petitioner, the learned Government Pleader and Sri. George Varghese for respondents 2 and 3. 3. The learned counsel for the petitioner relies on the judgment of the Division Bench of this Court in **Secretary, Registrar of Births and Deaths v. Thomas Jacob and Othrs. [2011 (3) KHC 389]** wherein paragraphs 9, 10 and 11 read as follows; _“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 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._ _10. The statutory provision providing for correction is S.15 of the Act, which provides that if it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under the Act is erroneous in form or substance, he may, subject to such rules as may be made by State Government with respect to the conditions on which and the circumstances in which such entires may be_ W.P.(C) No. 20243 OF 2023 5 _corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, and shall sign the marginal entry and add thereto the date of the correction or cancellation. R.11 provides that if a clerical or formal error made in the register is either reported or noticed by the Registrar, he shall enquire into the matter and if he is satisfied that any error has been made, he shall correct the error in the manner as provided therein. Sub rule (2) provides 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 as prescribed under S.15 of the Act upon production by that person affidavit 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. Sub-R.3, R.4 and R.5 of R.11 may not be relevant for the purpose of this judgment._ _11. In this case, it is the case of the 1[st] respondent that a mistake has been committed in recording the date of birth of his son Sri. Joshwa Thomas Jacob. To substantiate this 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 1[st] 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 postion of law that the prescriptions in a statutory rule cannot be modified by an executive order and if a statute requires someting to be done in a particluar manner, it shall be done in that manner alone. Rule does not require_ W.P.(C) No. 20243 OF 2023 6 _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 respsondent 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._ ” 4. That apart, public documents like Aadhaar Card, Electoral Card etc. enjoy legal presumption of its correctness in terms of the provisions under the Indian Evidence Act, 1872. When those documents are available, the Registrar cannot ignore the same and reject the application for correction of entry in the Birth Certificate for the reason that the Gynec Register is not produced. Therefore, Ext. P8 order warrants interference by this Court. Accordingly, Ext. P8 order is set aside. The 2[nd] respondent is directed to reconsider the application of the petitioner on the basis of Exts. P1 to P5 documents and on submitting a declaration as required under Rule 11(2) of the Registration of Births and Deaths Rules, 1999. This W.P.(C) No. 20243 OF 2023 7 shall be done within a period of ten days from the date of receipt of copy of this judgment. The writ petition is disposed of. ## **Sd/-** bnu **MURALI PURUSHOTHAMAN JUDGE** W.P.(C) No. 20243 OF 2023 8 ## **`APPENDIX OF WP(C) 20243/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE RELEVANT EXTRACT OF THE BAPTISM REGISTER OF KURIANNOOR ST THOMAS MALANKARA MARTHOMA SYRIAN CHURCH DATED 10- 06-2023 ``` - `Exhibit P2 TRUE COPY OF THE AADHAR CARD BEARING NO. 813666635622 ISSUED BY UIDAI` - `Exhibit P3 TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT BEARING NO S3835070 DATED 28.02.2018` - `Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE SECONDARY SCHOOL LEAVING CERTIFICATE DATED NIL ISSUED BY THE GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA` - `Exhibit P5 TRUE COPY OF THE MARK LIST OF THE PETITIONER BEARING NO.29848 DATED 29.11.1996 OBTAINED FROM ITI, MALLAPALLY` - `Exhibit P6` - `TRUE COPY OF THE BIRTH CERTIFICATE OF THE PETITIONER DATED 02.05.2023 ISSUED BY THE 3RD RESPONDENT` ``` Exhibit P7TRUE COPY OF THE APPLICATION DATED 12-06- 2023 SUBMITTED BEFORE THE 2ND RESPONDENT ``` ``` Exhibit P8TRUE COPY OF THE ORDER DATED 13.06.2023 ISSUED BY THE 2ND RESPONDENT ```