Allowed

Kiranben Vallabhbhai Bhanderi v. Jamnagar Municipal Corporation through Sub Registrar

Gujarat HC28 Jul 2022SCA/12854/2021

Case brief

AI extract

What is this about?

High Court allowed special civil appeal quashing Registrar's refusal to update birth certificate with adoptive father's name. Court held Sections 14 and 15 of Registration Act, 1969 and Section 16 of Hindu Adoptions and Maintenance Act empower Registrar to correct records based on registered adoption deed without birth father's consent.

What did the court decide?

Quashed impugned communication allowing Registrar to process application for change of father's name in birth certificate based on registered adoption deed within six weeks without requiring biologica

Kiranben Vallabhbhai Bhanderi Vs Jamnagar… — Pension and Retirement Benefits | Gujarat HC (2022)

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 12854 of 2021

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KIRANBEN VALLABHBHAI BHANDERI

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Versus

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JAMNAGAR MUNICIPAL CORPORATION THROUGH SUB REGISTRAR

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Appearance:

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MR MEET D PANSURIA(10170) for the Petitioner(s) No. 1 MR SAGAR GOHEL FOR MR HS MUNSHAW(495) for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 28/07/2022 ORAL ORDER

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Rule . Learned advocate Mr.Sagar Gohel waives service of notice for the respondent.

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At the outset, learned advocate Mr.Sagar Gohel appearing for the respondent has fairly submitted that subsequently the State Government has withdrawn the circulars dated 08.02.2016 and 10.03.2016.

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In the present writ petition, the petitioner is seeking issuance of writ, order or direction for quashing and setting aside the communication dated 16.06.2021 passed by the respondent authority, whereby the application of the petitioner for change of birth of minor daughter Vrunda by incorporating the name and surname of her adoptive father Shri Mehul Chandubhai Mungra.

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The brief facts of the case are as under:-

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4.1. The Petitioner is the mother of minor child ‘Vrunda’, whose (date of birth is 05.04.2013), on whose behalf, the subject application for change of name of adoptive father and surname in the Birth Certificate was made.

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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4.2. The marriage between the petitioner and Ashok Harjibhai Sangani i.e. the biological father of minor Vrunda was solemnised on 27.02.2011. The marriage was however dissolved by mutual consent and a divorce deed was executed and registered before the Sub-Registrar, Jamnagar on 14.11.2014, whereby the petitioner took custody and the entire responsibility of nurturing and bringing up minor Vrunda.

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4.3. The Petitioner subsequently married with Shri Mehul Chandubhai Mungra on 29.03.2015 and has taken minor Vrunda with her at her matrimonial home where her step-father Shri Mehul Chandubhai Mungra has adopted minor Vrunda by way of a registered adoption deed dated 07.05.2015, executed between the petitioner and her husband Mehul Chandubhai Mungra.

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4.4. The change in name of the adoptive father and surname of minor Vrunda was also published in the Gazette Notification No. 28, Volume LVI, dated 09.07.2015, whereby the name of the minor Vrunda was changed from “Vrunda Ashokbhai Changani” to “Vrunda Mehulbhai Mungra.”

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4.5. Subsequently, the petitioner moved an application dated 04.06.2021 before the Sub-Registrar (Births and Deaths Department), Jamnagar Municipal Corporation, requesting for change of name of her minor daughter Vrunda in her birth certificate by substituting the name of her adoptive father and surname inter alia on the basis of the registered adoption deed.

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4.6. The Sub-Registrar (Births and Deaths Department), Jamnagar Municipal Corporation, by the impugned communication dated

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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16.06.2021, refused the request. It was stated that the Petitioner should obtain an order form the court of competent jurisdiction along with the adoption deed in support of the request for change of name in the birth certificate in view of the amendment dated 10.03.2016 in the Notification dated 18.02.2016 in respect of registration of births and deaths.

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Learned advocate Mr.Pansuria appearing for the petitioner has submitted that the competent authority is functioning under the Registration of Births and Deaths Act, 1969 (for short “the Act”) and is vested with statutory power under Section 15 of the Act, which empowers the authority to effect correction in the entries in the Birth Certificate. He has submitted that this Court in the case of Nitaben Nareshbhai Patel vs. State of Gujarat, 2018 (1)GLR 884, has held that the authority under the Act is duty bound to exercise powers under Section 15 of the Act read with Rule 11 of the Gujarat Registration of Birth and Death Rules, 2004 and consider the request for correction in the birth certificate. He has placed reliance on the judgment dated 15.06.2022 passed in Special Civil Application No.15757 of 2021. Thus, it is submitted that since the impugned circulars are withdrawn by the State Government, the respondents may be directed to process the application of the petitioner.

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Learned advocate Mr.Sagar Gohel appearing for the respondent has submitted that though the aforesaid circulars are withdrawn, however, the petitioner is required to produce necessary documents and hence, he may be directed to do so, so that the same can be appreciated by the respondent authority.

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I have heard the learned advocates appearing for the respective parties.

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Page 3 of 8

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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It is not disputed that the impugned decision of the respondent is premised on the circular dated 10.03.2016, which is annexed along with the affidavit filed by the respondent, is subsequently withdrawn and cancelled by the State Government.

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At this stage, it would be opposite to refer to the provisions of Sections 14 and 15 of the Registration of Births and Deaths Act, 1969, which are as under:

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“14. Registration of name of child.— Where the birth of any child has been registered without a name, the parent or guardian of such child shall within the prescribed period give information regarding the name of the child to the registrar either orally or in writing and thereupon the Registrar shall enter such name in the registrar and initial and date the entry.

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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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A bare perusal of the aforesaid Sections 14 and 15 of the Registration of Births and Deaths Act, 1969 reveals that the Registrar has to inquire about any entry of the birth and death in any register kept by him under the Act.

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In case of Sejalben Mukundbhai Patel (supra) , this Court, after considering various judgments of this Court, has enunciated thus:

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“21 From the aforesaid statutory provisions and the decisions rendered by this Court, following aspects would emerge:

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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(a) The expression "erroneous in form of substance" in Section 15 of the Act of 1969 is an expression of wide amplitude and does not confine to simple typing errors or clerical mistakes and no guidelines or circulars can take away powers of the Registrar of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of the Act of 1969 and Rule 11(1) to (7) of the State Rules, 2004.

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(b) The Registrar appointed under the provisions of the Act of 1969 has got powers for correction in relation to the entries and the name also in the Register/ Birth Certificate and such correction or cancellation also comes within the purview of powers under Section 15 of the Act of 1969.

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(c) The competent authority appointed under the provisions of the Act of 1969 has to consider whether the entry in the Birth Certificate/ Register can be corrected or not, after making inquiry and after going through the relevant material, which may be produced by the concerned applicant or which may be called by competent authority for satisfying itself.”

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It is held that the Registrar can correct the entries made in the Birth Certificate, after making inquiry and after going through the relevant material, which may be produced by the applicant. Such correction and cancellation in the entries with relation to the name also comes within the purview of powers under section 15 of the Registration Act.

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I may also refer to Sections 9 and 16 of the Hindu Adoptions and Maintenance Act, 1956, which reads as under:

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“Section 9 - Persons capable of giving in adoption. —

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(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

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(2) Subject to the provisions of sub-section 4, the father or mother, if live shall alone have equal right to give a son or daughter in adoption.Provided that such rights shall not be exercised by either of them, save with consent with other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be unsound mind.”

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Section 16 : Presumption as to registered documents relating to

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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adoption. - Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

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In a similar set of facts, this Court, in the Order dated 15.03.2017 passed in Special Civil Application No.7864 of 2016, after examining the provisions of Section 16 of the Adoptions Act has held thus:

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"11. It further appears that thereafter, a Deed of Adoption came to be registered wherein the petitioner has adopted minor Harsh and such Adoption Deed is duly registered under Registration No.7262 dated 18.11.2015. It is clear from the decree of divorce between respondent no.3 herein and wife of the present petitioner that all rights of minor son Harsh was given to Neelamben, the present wife of the petitioner and thereafter, a registered Deed of Adoption is executed, which is in accordance with law and the Adoption Deed was registered with the competent authority and at present the petitioner and his wife have become parents of minor Harsh.

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12. Section 16 of the the Hindu Adoptions and Maintenance Act, 1956, provides as under:

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“Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

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13. In the case on hand, the decree of divorce between the biological parents clearly provides that custody of minor Harsh would be with the wife of the petitioner and respondent no.3 as former husband, has given up all his rights. The Deed of Adoption is a registered deed which is not challenged by anybody.On the contrary, as noted hereinabove, respondent No.3 who happens to be the biological father of the minor child Harsh has expressed by way of an affidavit before this Court in this petition unequivocally that he has no objection if the petitioner's name is substituted as father. Thus, as provided under section 16 of the Hindu Adoptions and Maintenance Act, 1956, minor Harsh is lawfully adopted and the Deed of Adoption is registered and therefore the presumption as per the provisions of section 16 of the Act can be drawn in favour of the petitioner as there is no rebuttal by the procedure known to the law. Following the ratio laid down by this

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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Court in the case of N.R. Trivedi v. District Education Officer, Anand, AIR 2004 Guj. 53, thus, from the record of this case, it appears that the presumption as regards adoption by a registered deed would be in favour of the petitioner."

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Thus, the Coordinate Bench has held that since the Deed of Adoption is registered and hence, a presumption as per the provision of Section 16 of the Adoptions Act, has to be drawn in favour of the petitioners since there is no rebuttal to the adoption deed.

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This Court in the judgment dated 15.06.2022 passed in Special Civil Application No.15757 of 2021, after examining the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956, more particularly Sections 9 and 16 and Sections 14 and 15 of the Act, has held thus:-

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“ 14. In such circumstances and in light of undisputed facts, the opinion of biological father is not necessary and if the same is sought for, it will create further complications and delay in make the correction. As per the provision of section 16 of the Hindu Adoptions and Maintenance Act, 1956, a presumption has to be drawn in favour of the petitioners since there is no rebuttal of the adoption deed of the minor 'Devam'. The Registrar, who is the competent authority under the Registration of Births and Deaths Act, 1969 can only verify the correction of the adoption deed and if the same is found to be duly registered and valid, he has to make necessary corrections/changes in the birth records of the adopted child. In the present case, the Registrar has not questioned the registration of the adoption deed.”

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This Court has held that even the consent of biological father is also not necessary in cases of adoption. Thus, the impugned communication dated 16.06.2021 passed by the respondent authority is quashed and set aside. The petitioner shall produce all the necessary documents in support of his case for change of the father’s name in the name of the minor. After such documents are produced, the respondent shall accordingly process the application of the petitioner as per the provisions of Sections 14 and 15 of the Act read with Rule 11 of the

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C/SCA/12854/2021 ORDER DATED: 28/07/2022

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Gujarat Registration of Birth and Death Rules, 2004 and pass appropriate orders within a period of six weeks. It is also clarified that the authorities shall not call upon the consent of the biological father.

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Thus, the Registrar, shall examine all the documents without insisting of the production of the Court’s order since the requirement is already done away by the State Government in withdrawing the aforesaid circulars.

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The present petition is allowed. Rule is made absolute.

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(A. S. SUPEHIA, J)

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ABHISHEK/76

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Kiranben Vallabhbhai Bhanderi v. Jamnagar Municipal Corporation through Sub Registrar

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Kiranben Vallabhbhai Bhanderi v. Jamnagar Municipal Corporation through Sub Registrar

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