Allowed

Kiranben Popatbhai Dudhat v. the Registrar of Birth and Death

Gujarat HC11 Jul 2022SCA/16279/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking correction of a birth certificate to reflect a child's adoptive father's name. The court quashed the respondent's rejection order, citing the withdrawal of the applicable restrictive circular, and directed the authority to process the application afresh with an adoption deed.

What did the court decide?

The impugned order dated 05.10.2021 was quashed and set aside. The respondent authority was directed to decide the application filed by the petitioners dated 21.09.2021 afresh within eight weeks of re

Kiranben Popatbhai Dudhat Vs the Registrar… — Pension and Retirement Benefits | Gujarat HC (2022)

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 16279 of 2021

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KIRANBEN POPATBHAI DUDHAT

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Versus

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THE REGISTRAR OF BIRTH AND DEATH

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Appearance:

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S M KIKANI(7596) for the Petitioner(s) No. 1,2 MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA

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Date : 11/07/2022 ORAL ORDER

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1.Rule. Learned advocate Mrs.Raval waives
service of notice of rule for and on behalf of
the respondent No.1.

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2.The present writ petition has been filed
inter alia for the following relief:

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“7(B) Your Lordships be pleased to issue a wrot of
madamus or a writ in the nature of mandamus or any
other appropriate wort, order or direction by
quashing and setting aside the impugned
reply/communication dated 05.10.2021 at Annexure-D,
by directing the respondent authority for to amend
and /or correct or mention the name of petitioner
no.2 in the column of ‘father name’ as ‘Popatbhai
Mohanbhai Dudhat’ in place of ‘Sureshbhai Bachubhai
Padsala’ in the birth certificate of son of
petitioners (Annexure-A) and to issue fresh birth
certificates accordingly, in the interest of justice”

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3.At the outset, learned advocate of the
petitioners has submitted that the Coordinate
Bench of this Court in the order dated 05.04.2022
passed in Special Civil Application No.16274 of
2021 has quashed and set aside the similar order
passed by the respondent in case of the daughter

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Page 1 of 7

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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of the petitioners namely, Dhruvi and in the
present case, the writ petition is filed for
their minor son namely, Bhavya.

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4. The brief facts of the case are as under:

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4.1It is the case of the petitioners that the
petitioner No.1 had earlier married with one
Sureshbhai Bachubhai Patel (Padsala) and out of
that wedlock, a girl namely, Dhruvi was born on
10.09.2008 at Surat. Thereafter, a boy namely,
Bahvya was born on 15.07.2011 at Ahmedabad,
pursuant to which, his birth came to be recorded
with respondent at Nikol ward on 25.07.2011. On
18.10.2019, earlier husband of the petitioner-
Sureshbhai Patel has passed away. On 02.08.2020,
the petitioner No.1 got remarried with petitioner
No.2 at Surat, which was registered with Marriage
Registrar. The petitioner No.2 agreed to take all
the responsibilities of minor Dhruvi and Bhavya
and, therefore, he adopted both the children,
pursuant to which, a deed of adoption has been
executed between the parties at the office of the
Registrar vide Registration No.9607 on
05.12.2020.

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5.Learned advocate for the petitioners has
submitted that to avoid future difficulties in
the legal formalities with Government, it is
necessary for the petitioners to get replaced the
name of petitioner No.2 as the father of minor
son-Bhavya instead of name of his biological

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Page 2 of 7

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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father in the Birth Certificate and hence, they
made a representation dated dated 21.09.2021
however, the respondent authority rejected the
same vide communication dated 05.10.2021 relying
upon the Government Resolution dated 18.02.2016.

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6.Learned advocate Mr.Dave appearing for the
respondent No.2 is unable to dispute the fact
that the circular dated 18.02.2016 is already
withdrawn.

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7.Heard the learned advocates for the
respective parties and also perused the documents
as pointed out by them.

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8.It is not in dispute that the petitioners
approached the respondent authority for necessary
changes in the name of petitioner no.2 as father
of a minor son-Bhavya instead of his biological
father in the birth certificate of ‘Bhavya’ by
entering the name of the petitioner no.2 in the
column of father’s name as ‘Popatbhai Mohanbhai
Dudhat’ in place of ‘Sureshbhai Bachubhai
Padsala’. The above changes, according to the
petitioners, are necessary to see to it that no
future difficulties would occur in the issuance
of the process of passport and other legal
formalities, etc.

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9. Learned advocate appearing for the petitioners
relied upon the circulars issued by the Central
Government and State Government and submitted

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Page 3 of 7

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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that the respondent could not have rejected the
application preferred by the petitioners in view
of the fact that according to the said circulars,
only registered adoption deed is mandatory. He
also submitted that provisions of Section 15 of
the Registration of Births and Deaths Act, and
Rule 11 of the Registration of Births and Deaths
Rules also empower the authority to correct,
delete, alter or amend any entry posted in the
birth certificate, as the authority is vested
with the clear jurisdiction to undertake the
requisite changes as sought for. The petitioners
have produced the documents as per the
requirement under the Act before the respondent
authority. The said documents are also produced
alongwith the present writ petition. I have gone
through the said documents.

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10.At this stage, it is apposite to refer to the
order passed by the coordinate bench of this
Court in Special Civil Application No.7864 of
2016, relevant paragraphs read thus:

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"10. Upon considering the submissions made and on
perusal of the record, it clearly transpires that by
a judgment and decree dated 18.02.2012 passed by the
Family Court, Ahmedabad in Family Suit No.688 of
2011, the marriage solemnized between respondent no.3
and the wife of the present petitioner, Neelamben,
came to be dissolved. The said judgment records as
under-

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"The custody of the minor son shall remain with
the petitioner no.2/wife in future. The
petitioner no.1/husband have (sic) has waived his
visitation rights to meet the minor in future."

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Page 4 of 7

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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The said decree is also registered.

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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 Court in the case of N.R. Trivedi v. District
Education Officer, Anand, AlIR 2004 Guj S3, thus,
from the record of this case, it appears that the

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Page 5 of 7

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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presumption as regards adoption by a registered deed
would be in favour of the petitioner.

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14.In light of the aforesaid therefore, the following
direction is issued-

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a. The respondent Corporation shall make entry in the
birth certificate of the minor child Harsh according
to the application of the petitioner and change the
name of father from Snehal Pravinbhai Jayswal to the
present petitioner, ie., Tushar Kanaiyalal Vyas.

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b. Such exercise shall be carried out by the
respondent no.2 authority as expeditiously as
possible and a fresh birth certificate of minor child
Harsh with necessary entries shall be issued to the
petitioner within a period.”

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11.In view of the aforesaid ratio as laid down
by this Court, the only requirement is to have a
valid adoption deed, which is duly produced by
the petitioners (at page-11 to 40, Annexure-B of
this petition), the said adoption deed is also
supported by two witnesses and the same is a
registered adoption deed. All other requirements,
as contemplated under the Act and Rules, are also
fulfilled by the writ-petitioners. There was no
reason for the respondent authority not to
consider the application made by the petitioners.
The authority has further rejected the
application on the basis of the circular dated
18.02.2016. The said circular stands cancelled by
a notification dated 02.12.2021, that is also one
of the reasons, the impugned order passed by the
respondent authority is not sustainable.

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12. Under such circumstances, the order passed by
the respondent dated 05.10.2021 is required to be

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Page 6 of 7

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C/SCA/16279/2021 ORDER DATED: 11/07/2022

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quashed and set aside and the same is quashed and
set aside. The respondent authority is directed
to decide the application filed by the
petitioners dated 21.09.2021 afresh within a
period of eight weeks from the date of the
receipt of the writ of the order taking into
consideration all the documents that are produced
by the petitioners.

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13.In case the authorities have taken any
decision for correcting the birth certificate of
their daughter “Dhruvi” in view of the order
dated 05.04.2022, passed in Special Civil
Application No.16274 of 2021, then similar order/
corrected birth certificate shall be issued in
the case of their son “Bhavya”.

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14.In view of above, the present writ petition
succeeds and the same is allowed. Rule made
absolute. Direct service is permitted.

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Sd/- . (A. S. SUPEHIA, J)

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NVMEWADA

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Page 7 of 7

Kiranben Popatbhai Dudhat v. the Registrar of Birth and Death

Case brief

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Kiranben Popatbhai Dudhat v. the Registrar of Birth and Death

Case brief

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