Usha Thomas and Saramma Thomas v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** **WP(C).No. 18825 of 2017 (C)** **----------------------------** ## **PETITIONERS :** - **-----------** ## **1. USHA THOMAS,** **AGED 54 YEARS, D/O. C.V. THOMAS, SANKARAMANGALAM, ERAVIPEROOR P.O., PATHANAMTHITTA-689542.** ## **2. SARAMMA THOMAS,** **AGED 82 YEARS, W/O.C.V. THOMAS, PATTAMUKKIL VARATTISERRIL,RAMANCHIRA,** **BY ADVS.SRI.JOSEPH GEORGE SRI.BIJO THOMAS GEORGE SMT.NICEY A. MENON** **RESPONDENTS :** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695001.** **2. THE REVENUE DIVISIONAL OFFICER, THIRUVALLA, PATHANAMTHITTA DISTRICT-689102.** **3. THE NEDUMPURAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYATH OFFICE, NEDUMPURAM, THIRUVALLA-689578.** **R1 & R2 BY GOVERNMENT PLEADER SRI.S. KANNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 18825 of 2017 (C)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** |**EXHIBIT-P1:**|**TRUE COPY OF**|**THE IST PAGE OF S.S.L.C BOOK**| |---|---|---| ||**OF THE IST PETITIONER**|| |**EXHIBIT-P2:**|**TRUE COPY OF**|**THE EXTRACT OF BAPTISM**| ||**REGISTER OF NEDUMPURAM CHRISTOS MARTHOMA**|| ||**SYRIAN CHURCH**|| |**EXHIBIT-P3:**|**TRUE COPY OF**|**THE ONE AND THE SAME**| ||**CERTIFICATE DATED 30/06/2016 ISSUED BY**|| ||**ERAVIPEROOR VILLAGE OFFICE**|| |**EXHIBIT-P4:**|**TRUE COPY OF**|**THE AFFIDAVIT DATED**| ||**28/03/2015 OF**|**THE 2N PETITIONER**| |**EXHIBIT-P5:**|**TRUE COPY OF**|**THE COMMUNICATION NO.**| ||**A4/1088/2016 DATED 20/07/2016 OF PERIGARA**|| ||**GRAMA PACHAYATH**|| |**EXHIBIT-P6:**|**TRUE COPY OF**|**THE EXPLANATION DATED**| ||**26/09/2016 OF**|**THE IST PETITIONER**| |**EXHIBIT-P7:**|**TRUE COPY OF**|**THE ORDER NO. A5-1906/2016**| ||**DATED 27/12/2016 ISSUED BY THE 2ND**|| ||**RESPONDENT**|| |**EXHIBIT-P8:**|**TRUE COPY OF**|**THE JUDGMENT DATED**| ||**08/03/2016 IN**|**W.P(C)4436/2017 OF THIS**| ||**HONOURABLE COURT**|| |**EXHIBIT-P9:**|**TRUE COPY OF**|**THE ORDER NO. A5-**| ||**1906/16/K.DIS**|**DATED 10/05/2017 ISSUED BY**| ||**THE 2ND RESPONDENT**|| |**RESPONDENT(S)'**|**EXHIBITS**|**:**<br>**NIL.**| |||**//TRUE COPY//**| |||**P.A. TO JUDGE**| **bp** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = = = = =** ## **WP.(C).No.18825 of 2017-C .** **= = = = = = = = = = = = = = =** Dated this the 12[th] day of June, 2017. ## **J U D G M E N T** The first petitioner is the daughter of the second petitioner. The first petitioner was though born on 05.09.1962, her date of birth is wrongly shown as 15.05.1962 in her SSLC book. The case of the petitioners is that when the said mistake was noticed, the first petitioner preferred an application for issuance of a birth certificate with a view to get the mistaken entry in her SSLC book corrected. In response to the said application, the first petitioner was issued Ext.P5 communication by the Registrar of Births and Deaths attached to Peringara Grama Panchayat stating that the birth of the first petitioner has not been registered under the Registration of Births and Deaths Act, 1969 (the Act). As per the provisions of the Act, if the birth is not registered within one year of its occurrence, the same can be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate. The first petitioner, in the circumstances, preferred an application before the second **WP.(C).No.18825 of 2017-C.** 2 respondent, the Magistrate empowered under the Act to pass orders for registration of birth. On the said application, the second respondent informed the petitioner that since there is disparity in the date of the birth of the first petitioner shown in the documents produced by her, her request cannot be processed. Ext.P7 is the communication issued by the second respondent in this connection. Ext.P7 communication has been challenged by the petitioners before this Court in W.P.(C). No.4436 of 2017 and this Court set aside Ext.P7 communication and directed the second respondent to take a decision on the application preferred by the first petitioner. Ext.P8 is the judgment rendered by this Court in the said writ petition. Pursuant to Ext.P8 judgment, the matter was though considered by the second respondent, the prayer of the first petitioner was declined. Ext.P9 is the order issued by the second respondent in this connection. Ext.P9 is under challenge in this writ petition. 2. Heard the learned counsel for the petitioners as also the learned Government Pleader. 3. Section 13 of the Act reads thus: - “ **13. Delayed registration of births and deaths** :- **WP.(C).No.18825 of 2017-C.** 3 (1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty 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 and 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 a 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 provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action.” As noted above, a reading of the Section extracted above would indicate that if information concerning the birth is not given to the Registrar within one year, the birth is liable to be registered under the Act only if an order for the said purpose has been issued by the Magistrate referred to in sub-Section (3). The provisions contained in sub-section (3) of Section 13 indicates that the jurisdiction of the Magistrate under the said sub-section is to verify the correctness of the claim. In other words, the scheme of the statute is that if the birth is not registered within one year, the same shall be registered only after a Magistrate **WP.(C).No.18825 of 2017-C.** 4 satisfying the correctness of the claim. This aspect has been clairified by this Court in **Kashmi K.Alex v. Local Registrar of Births and Deaths** [2015(4) KLT SN 80 (C.No.101)]. As such, in a case of this nature, what the Magistrate is expected to do is to ascertain the correctness of the claim of the applicant. 4. Reverting to the case on hand, the specific case of the first petitioner is that she was born on 05.09.1962 and that her date of birth is wrongly shown in her SSLC book as 15.05.1962. The document which the first petitioner is relying on to establish the said case is her baptism certificate issued from the Church. The question that should have been considered by the second respondent, in the circumstances, was as to the correctness of the baptism certificate. If the baptism certificate is correct, the petitioner is entitled to register her birth on that basis. The operative portion of the impugned order reads thus: **“** ÌÙáÎÞÈæMG ØádÉà¢çµÞ¿ÄßÏáæ¿ **Board of Secondary Education of Assam Vs. Md Sarifuz Zaman and others** ®K çµØßæaÏá¢, ÌÙá: çµø{ èÙçAÞ¿ÄßÏáæ¿ **Jayakumar Vs. The Regional Passport Officer** ®Kà øIá çµØáµ{áæ¿ÏᢠæÕ {ߺîJßÜá¢, µfßæÏ ÕߺÞøà ȿJßÏÄßW 1982_W ÌßøáÆ¢ çÈ¿ß ØVAÞV ØVÕàØßW dÉçÕÖߺî çÕ{ÏßçÜÞ, ¥ÄßÈáçÖ×¢ 2008_W ÉUß ØVGßËßAxí çÈ¿ßÏ ØÎÏJí ÖøßÏÞÏ ¼ÈÈÄàÏÄß 05/09/1962 ®Kí ¥ùßEßGᢠ¿ß ¼ÈÈÄàÏÄß ÄßøáJáKÄßÈáU È¿É¿ßµZ ØbàµøßAÞæÄ, 2015_W ØíµâZ ØVGßËßAxí dɵÞø¢ ÉÞØíçÉÞVGí ®¿áJßøßAáKÄí ®KÄí Ø¢Ìtߺîá¢, ØVAÞV **WP.(C).No.18825 of 2017-C.** 5 ©çÆcÞ·ØíÅÏÞÏ ¥çÉfµ ®LáæµÞIí ÈÞ{ßÄáÕæø ¼ÈÈ ÄàÏÄß ÄßøáJáKÄßÈáU È¿É¿ßµZ ØbàµøßAáÕÞX µÞÜÄÞÎØ¢ çÈøßGÄí ®KáUÄßÈᢠÄcÉñßµøÎÞÏ ÕßÖÆàµøâ ÈWµáÕÞX dÖàÎÄß.©×ÞçÄÞÎØßÈí ØÞÇߺîßGßÜïÞJÄáÎÞÏ ØÞÙºøcJßÜᢠØVAÞV ØVÕàØßW ÈßKí ÕßøÎßAáÕÞX ¯ÄÞÈᢠÎÞØBZ ÎÞdÄ¢ ÌÞAß ÈßWæA ÉUß ØVGßËßAxí ¥¿ßØíÅÞÈÎÞAßÏáU ¼ÈÈ ø¼ßØíçd¿×X ¥ÈáÎÄß ÈWµáÕÞX ÈßVÕîÞÙÎßÜïÞJÄßÈÞÜá¢, ¿ß ¥çÉf ÈßøØߺîí æµÞIí ©JøÕÞµáKá. **”** The extracted portion of the impugned order does not indicate that the Magistrate has considered the correctness of the claim made by the first petitioner. The reasons stated by the Magistrate in the impugned order that the first petitioner has not taken any effort to obtain birth certificate showing her correct date of birth when she obtained a baptism certificate in the year 2008 and that she has obtained a passport showing the date of birth as contained in the SSLC book in the year 2015 may not be relevant in the context of the power conferred on the Magistrate under sub-Section (3) of Section 13 of the Act. When the statute confers a right on a person to register his/her birth after obtaining orders from the Magistrate, according to me, the Magistrate has to adjudicate the correctness of the claim and order registration of the birth. Since the said course has not been adopted in the matter, the petitioners are entitled to succeed. In the result, the writ petition is allowed, Ext.P9 order **WP.(C).No.18825 of 2017-C.** 6 of the second respondent is quashed and the second respondent is directed to consider the application preferred by the first petitioner for permission to register her birth afresh as indicated in this judgment. Needless to say that if it is found that the date of birth shown in the baptism certificate of the first petitioner is correct, her birth has to be registered on that basis, or else the birth can be directed to be registered on the basis of the date of birth shown in the SSLC book. The direction aforesaid shall be complied with, within one month from the date of receipt of the copy of the judgment. _**Sd/-**_ **JUDGE.** **P.B.SURESH KUMAR,** _**Kvs/-**_ _// true copy //_