Allowed

Deepa Mohan Sharma v. the State of Maharashtra and Others

Bombay HC6 Sept 2019WP/3914/2019

Case brief

AI extract

What is this about?

This judgment directed the Aurangabad Municipal Corporation to decide on correcting the petitioner's gender in the birth register to female based on medical certificates. The court held that the Registrar must act under Section 15 of the Registration of Births and Deaths Act and Section 370 of the Maharashtra Municipal Corporations Act within three months, without waiting for resolution of the pen

What did the court decide?

Direction to the Registrar to take a decision on correcting the birth record entry within three months of the order date.

Deepa Mohan Sharma Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3914 OF 2019

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DR. DEEPA D/o. MOHAN SHARMA

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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Advocate for Petitioner: Mr. Amar D. Soman
AGP for Respondents No. 1 & 2: Mr. P. K. Lakhotiya
Advocate for Respondents No. 3 & 4: Mr. J. R. Shah
Advocate for Applicants (CA/8558/2019):
Mr. P. V. Barde

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CIVIL APPLICATION NO. 8558 OF 2019

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CORAM:S. V. GANGAPURWALA &
MANGESH S. PATIL, JJ.

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RESERVED FOR ORDERS ON:07.08.2019
ORDER PRONOUNCED ON:06.09.2019

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ORDER(Per S. V. Gangapurwala, J.):

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1.The present petition is filed seeking

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directions against respondents no. 3 and 4 to
correct gender of the petitioner as female instead

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of male in the birth register at serial no. 440.

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2.Mr. Soman, learned counsel for the

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petitioner submits that the petitioner is born at

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Aurangabad, and in the birth record maintained by
the Aurangabad Municipal Corporation the gender of
the petitioner is recorded as male instead of
female by mistake. The petitioner filed an
application to correct the record. The medical
board at Aurangabad and Pune upon examination of
the petitioner gave a certificate that the correct

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gender of the petitioner is female. The
corporation is not correcting the same. According
to the learned counsel, the petitioner was born on
25.10.1984, and the entry of her birth is taken in
the birth register by the authority at serial no.

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440. The petitioner applied for the birth

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certificatetotheAurangabadMunicipal
Corporation. The petitioner was given the birth
certificate on 07.04.1994. On or about 11.06.2018,
the petitioner had filed an application to correct
her gender in the original birth register. On the
basis of the directions issued by the Deputy
Secretary, Public Health Department the Aurangabad
Municipal Corporation referred the petitioner to

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the medical board of Government Medical College
and Hospital, Aurangabad for gender test. Upon
conducting the gender test, the Government Medical
College and Hospital, Aurangabad has issued a
medical certificate to the petitioner as female.
The petitioner was also referred by the

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Corporation to Sassoon General Hospital and B. J.
Medical College, Pune for gender test. The
petitioner was examined by the panel of expert

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doctors and thereafter hospital has given
certificate that the gender of the petitioner is
female. After receiving the certificate, on or

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about 20.02.2019, the petitioner filed an
application to correct the gender in the birth
record maintained by the Aurangabad Municipal

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Corporation. The Corporation is not correcting the
said record.

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3.The learned counsel for the petitioner

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further submits that U/Sec. 15 of the Registration
of Births and Deaths Act, 1969, the original birth

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record can be changed. The respondents have failed

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to perform their obligation. According to the
learned counsel, the dispute between the
petitioner and her husband has nothing to do with
the application for correction of the birth
record. The learned counsel relies on the judgment
of the Division Bench of the Gujarat High Court in

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case of Mulla Faizal @ Fazilabanu Suleman Ibrahim
Vs. State of Gujarat and others reported in (2000)
41(2) GLR 1553.

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4.Mr. Soman, learned counsel for the

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petitioner also relies on Rule 11 of the
Maharashtra Registration of Births and Deaths
Rules, 2000.

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5.Mr. Shah, learned counsel for the

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Municipal Corporation submits that the dispute is
pending between the petitioner and her husband.
The Registrar has rightly directed the petitioner

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to approach the District Court, Aurangabad and
seek necessary orders.

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6.Mr. Barde, learned counsel for the

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intervenors / husband of the petitioner submits
that the petitioner has played fraud upon the
applicants / intervenors. The petitioner is not
born as female but born as male. The present
applicant no. 1 has filed petition before the
Family Court, Bangalore seeking decree of nullity
of marriage in the month of September 2016, and
thereafter the petitioner has moved for correction
of gender in the birth record. The present
applicant no. 2 has also lodged a complaint of
extortion against the present non applicant no.
1 / original writ petitioner. In all these
proceedings filed by the applicants, the gender of
the original writ petitioner is questioned and
subjudice. The original writ petitioner by
suppressing all these facts has filed the present
writ petition. In such circumstances, the birth
record cannot be corrected. The learned counsel
relies on the judgment of the Division Bench of
this Court at its Principal Seat in Writ Petition
No. 723 of 2017 dated 13.03.2018. Rule 11 of the

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Maharashtra Registration of Births and Deaths
Rules, 2000 and the Rules framed thereunder
provides for the procedure. A very limited power
is confirmed on the Registrar to correct the entry
in the birth record. The learned counsel also
relies on the judgment of the Divisional Bench of
the Orissa High Court in case of Sk. Rahimuddin
Vs. Ojifa Bibi and others reported in (1989) AIR
(Orissa) 56 and another judgment of the Gujarat
High Court in case of Karimabibi and others Vs.
Ankleshwar Municipality and others reported in
(1998) AIR (Gujarat) 42.

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7.Mr. Barde, learned counsel for the
intervenors refers to Section 370 of the
Maharashtra Municipal Corporations Act, 1949 and
submits that the original entry can never be
erased but can only be corrected by an entry in
the margin, without any alteration of the original
entry, even if it is the case of clerical error.

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8.Before we advert to the contentions of

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the learned counsel for respective parties it

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would be appropriate to refer to Section 370 of
the Maharashtra Municipal Corporations Act, 1949,
Section 15 of the Registration of Births and
Deaths Act, 1969 and Rule 11 of the Maharashtra
Registration of Births and Deaths Rules, 2000.

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“ The Maharashtra Municipal Corporations Act, 1949 Section 370

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(1) Any clerical error which may at any time be discovered in a register of births or in a register of deaths may be corrected by any person authorised in that behalf by the Commissioner.

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(2) An error of fact or substance in any such register may be corrected by any person authorised as aforesaid by entry in the margin, without any alteration of the original entry, upon production to the Commissioner, by the person requiring such error to be corrected, of a declaration on oath setting forth the nature of the error and the true facts of the case, made before a Magistrate by two persons required by this Act to give information concerning the birth or death with reference to which the error has been made or, in default of such persons, by two credible persons having knowledge of the case, and certified by such Magistrate to have been made in his presence. (3) Except as aforesaid no alteration shall be made in any such register.”

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“ The Registration of Births and Deaths Act, 1969 -

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Section 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 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.”

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“ The Maharashtra Registration of Births and Deaths Rules, 2000 - Rule 11. Correction or cancellation of entry in the register of births and deaths under Section 15 -

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(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 and if the register is in his possession, 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 will be communicated to the Deputy Chief Registrar of Births and Deaths, Maharashtra State, Pune. (2) In the case referred to in sub-rule (1), if the register is not in his possession, the Registrar shall make a report to Block Development Officer for rural area, Executive Health Officer / Health Officer / Chief Officer / Executive Officer for concerned

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urban area, and call for the relevant register and after enquiring into the matter, if he is satisfied that any such error has been made, make the necessary correction.

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(3) Any such correction as mentioned in subrule(2) shall be countersigned by Block Development Officer for rural area, when the register is received from the Registrar. (4) 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 of a 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.

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(5) Notwithstanding anything contained in sub-rule (1) and sub-rule (4), the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the Deputy Chief Registrar of Births and Deaths, Maharashtra State, Pune.

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(6) 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 Block Development Officer for rural area, 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. (7) In every case in which an entry is corrected or cancelled under this rule, an intimation thereof shall be sent to the permanent address of the person who has given information under section 8 or section 9.”

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9.In the present writ petition, we would

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not be concerned with the litigation amongst the

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petitioner and the intervenors. It is for the
competent Court to decide the proceedings pending
before it in accordance with the evidence led by
the parties.

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10.The only issue before us is whether
respondent no. 4 needs to be directed to correct
the entry in the birth record.

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11.It appears from the documents filed on

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record that the petitioner was referred to the
Government Medical College and Hospital,
Aurangabad, so also the Sassoon General Hospital
and B. J. Medical college, Pune. The committee
constituted at Aurangabad Government Medical
College and Hospital has certified the gender of
the petitioner as female. It needs to be
appreciated that the petitioner was referred to
the said committee by the Registrar, Births and
Deaths Registration cum Medical Health Officer,
Municipal Corporation, Aurangabad. The same
authority also referred the petitioner to the

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Sassoon General Hospital and B. J. Medical
College, Pune. The Sassoon General
Hospital and B. J. Medical College,
Pune submitted the report after
examining the petitioner certifying that the
petitioner is found to be Phenotypically and
Genotypically female. Respondent no. 4 had
directed the petitioner to be examined by
Government Medical College and Hospital,
Aurangabad and Sassoon General Hospital and B. J.
Medical college, Pune.

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12.In fact, after an application is received
by respondent no. 4 for correction of entry in
the register of births, respondent no. 4 is
required to follow the procedure and the
requirements as laid down U/Sec. 15 of the
Registration of Births and Deaths Act,1969. Rule
11 of the Maharashtra Registration of Births and

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Deaths Rules, 2000 and Section 370 of the
Maharashtra Municipal Corporations Act, 1949.
U/Sec.15 of the Registration of Births and Deaths

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Act, 1969 if it is proved to the satisfaction of
the Registrar that any entry of 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
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 correction or cancellation. Rule 11 of the
Maharashtra Registration of Births and Deaths
Rules, 2000 requires the Registrar to enquire into
the matter, and if he is satisfied that any such
error has been made, he shall correct the error as
provided in Section 15 of the Registration of
Births and Deaths Act, 1969 and shall send an
extract of the entry showing the error and how it
has been corrected communicating to the Deputy

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Chief Registrar of Births and Deaths, Maharashtra
State, Pune. Section 370 of the Maharashtra
Municipal Corporations Act, 1949 is on the same
lines.

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13.Respondent no. 4 would be unconcerned

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with the dispute amongst the parties.

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14.Upon an application received for
correction of the entry in the birth register,
respondent no. 4 has the power to correct the same
subject to the limitations and clarifications as
provided U/Sec. 15 of the Registration of Births
and Deaths Act, 1969, Rule 11 of the Maharashtra
Registration of Births and Deaths Rules, 2000 and
Section 370 of the Maharashtra Municipal
Corporations Act, 1949. As far as the dispute in
the matters pending before the competent Court of
law amongst the petitioner and the intervenors,
the facts therein have to be proved on its own
merits. The Registrar need not wait for any
directions from the Court. Respondent no. 4 can

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exercise his powers U/Sec. 15 of the Registration
of Births and Deaths Act, 1969, of course, after
following procedure as is laid down under Rule 11
of the Maharashtra Registration of Births and
Deaths Rules, 2000 and as provided U/Sec. 370 of
the Maharashtra Municipal Corporations Act, 1949.

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The change can be made upon the subjective
satisfaction of the Registrar based on objective
assessment and the facts before him.

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15.In the light of above, respondent no. 4

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shall take decision upon the application of the
petitioner for correction of the entry in the
birth register as claimed by the petitioner as
provided in Section 15 of the Registration of
Births and Deaths Act, 1969, Rule 11 of the
Maharashtra Registration of Births and Deaths
Rules, 2000 and Section 370 of the Maharashtra
Municipal Corporations Act, 1949. The decision

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shall be taken by the Registrar upon the
application of the petitioner within a period of
three (03) months.

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16.With the aforesaid observations, the writ

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petition stands disposed of. No costs.

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17.In view of disposal of the writ petition,

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the civil application also stands disposed of.

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[MANGESH S. PATIL, J.] [S. V. GANGAPURWALA, J.]

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marathe

Deepa Mohan Sharma v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Deepa Mohan Sharma v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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