V. Prabhakaran v. State of Kerala and Registrar of Births & Death, Vaikom Municipality

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940** **WP(C).No. 21439 of 2014** ## **PETITIONER(S)** **V.PRABHAKARAN, AGED 71 YEARS, S/O.SRI.VAVA, H.NO.27/2544, PARIJATHAM, K.P VALLON ROAD, KADAVANTHRA, COCHIN 682 020, KERALA.** **BY ADVS.SRI.T.K.RADHAKRISHNAN SRI.T.B.GAFOOR SMT.S.SREEDEVI(ALP)** ## **RESPONDENT(S):** **1. STATE OF KERALA,** **REPRESENTED BY THE CHIEF SECRETARY.** **2. THE REGISTRAR OF BIRTH & DEATH, VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT 686 141.** **R1 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL R2 BY ADV. SMT.A.SREEKALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **25.07.2018** **Msd.** **WP(C).No. 21439 of 2014 (D)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 COPY OF THE APPLICATION ISSUED TO THE 2ND RESPONDENT DATED 24-07-2014. EXHIBIT P2 COPY OF THE REPLY GIVEN BY THE HOSPITAL SUPERINTENDENT DATED 04-08-2014. EXHIBIT P3 COPY OF AFFIDAVIT DATED 23-07-2014. EXHIBIT P4 COPY OF S.S.L.C BOOK OF RENJITH. EXHIBIT P5 COPY OF PASSPORT OF RENJITH. EXHIBIT P6 COPY OF BIRTH CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 02-04-1980. EXHIBIT P7 COPY OF THE ORDER DATED 04-08-2014 PASSED BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 25.07.2018** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C) No.21439 of 2014 ----------------------------------------------Dated this the 23[rd] day of July, 2018** ## **J U D G M E N T** This writ petition is filed by the petitioner seeking to quash Ext.P7 order dated 4.8.2014 passed by the Registrar of Births and Deaths, Vaikom Municipality, Kottayam District refusing to correct the date of birth entry as per the provisions of the Births and Deaths Act, 1969 and for other consequential reliefs. 2.Basic material facts for the disposal of the writ petition are as follows; petitioner is a service pensioner. A son was born to the petitioner on 22.12.1977 at Government Hospital, Vaikom at 11.30 p.m. The hospital authority intimated the birth of the child and on the basis of information given by the hospital authority, the birth was registered by the 2[nd] respondent on 26.12.1977, however, the date of birth was shown as “23.12.1977” whereas the W.P.(C) No.21439 of 2014 2 birth is taken place on “22.12.1977” at 11.30 p.m. Birth certificate was not essential for admitting the child in the school at that time. However, petitioner admitted his son to the school with the date of birth as '22.12.1977'. According to the petitioner, it is the correct date of birth. Son of the petitioner is working abroad at New Zealand. The birth certificate has been produced for availing visa and then it was brought to the notice that, the date of birth in the certificate and the educational records are different and hence the authorities directed the petitioner's son to produce the correct birth certificate. It was thereupon that, petitioner submitted an application before the 2[nd] respondent, however, it was declined stating that, as per the provisions of the Act, there is no power vested with the 2[nd] respondent to correct the date of birth. 3. I have heard learned counsel for petitioner, learned Government Pleader for respondents and perused the pleadings and documents on record. W.P.(C) No.21439 of 2014 3 4. The fact discussion made above would make it clear that, the application submitted by the petitioner for correction of date of birth was declined stating that, there is no power vested with the 2[nd] respondent in order to carry out the correction. In my considered opinion, the said stand adopted by the 2[nd] respondent is not correct. Section 15 of the Registration of Births and Deaths Act, 1969 read along with Registration of Births and Death Rules, 1999 provides ample power to the 2[nd] respondent to ascertain whether any correction as is sought for can be provided. Section 15 of Registration of Births and Deaths Act, 1969 read thus: **“15. Correction or cancellation of entry in the register of births and deaths.--** 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 this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be W.P.(C) No.21439 of 2014 4 corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation.” Rule 11 of the Registration of Births and Death Rules 1999 read thus: ## **R.11. Correction or cancellation of entry in** **the register of births and deaths.-** (1) If it is reported to the Registrar that a clerical or formal error has been made in the register or if such error is otherwise noticed by him the Registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in section 15 and shall send an extract of the entry showing the error and how it has been corrected to the State Government or the officer specified by it in this behalf. (2) 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 prescribed under section 15 upon production by that person a declaration setting forth the nature of the error and true facts of the W.P.(C) No.21439 of 2014 5 case made by two credible persons having knowledge of the facts of the case. (3) Notwithstanding anything contained in sub-rule (1) and sub-rule (2) the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the State Government or the officer specified in this behalf. (4) If it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or improperly made, he shall make a report giving necessary details to the officer authorised by the Chief Registrar by general or special order in this behalf under section 25 and on hearing from him take necessary action in the matter. (5) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under section 8 or section 9.” 5. On a reading of the aforesaid provisions, it is amply clear that, the 2[nd] respondent on receipt of the application shall make necessary enquiries so as to identify whether the corrections sought for by the petitioner could be granted or W.P.(C) No.21439 of 2014 6 not. The sole reason assigned in Ext.P7, as I have pointed out earlier, is there is no power. Section 15 of the Act and rule 11 of the Rules makes it specific and explicit that, the said authority is vested with power to make necessary enquiries and do the necessary. 6. So far as the correction sought for by the petitioner in the birth certificate of his son is concerned, it is just a difference of half an hour. There could be every possibility that, the time of birth of petitioner's son is mistook by the 2[nd] respondent as '23.12.1977' instead of '22.12.1977'. There is also possibility that, the hospital authorities must have misunderstood the same and has intimated that, the date of birth was on '23.12.1977'. 7. Any how, I am of the considered opinion that, there is ample power vested with the 2[nd] respondent. The issue with respect to correction of the birth certificate was considered by this court in **Sivanandan v. Registrar of Births and Deaths** [2007(3)KLT 721] and held that, the W.P.(C) No.21439 of 2014 7 authority is vested with sufficient powers to make enquiries and carry out correction, if there is sufficient evidence. Same is the case in the decision rendered by a Division Bench of this Court in **Chalakudy Municipality v. Malavika** [2009(4)KLT 714]. Taking into account the aforesaid judgments, a learned Single Judge of this court in **Mathew Alex v. Kanjirappally Grama Panchayath** [2018(3)KLT 126] held that, there is power with the 2[nd] respondent to carry out correction in the name of the applicant therein. It is further held in **Mathew Alex** (supra) that, so far as the change of name is concerned, the applicant has a fundamental right under Article 226 of the Constitution of India. 8. Taking into account all these aspects, I am of the considered opinion that, Ext.P7 order suffers from the vice of arbitrariness and illegality liable to be interfered with by this court under Article 226 of the Constitution of India. Accordingly, I quash Ext.P7 and direct the 2[nd] respondent W.P.(C) No.21439 of 2014 8 to re-consider the application submitted by the petitioner taking into account the proposition of law laid down by this court in its various judgements referred to above and attain finality at the earliest possible time and at any rate within a month from the date of receipt of a copy of this judgement. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv /23.7.2018