Allowed

Bharatbhai Vallabhbhai Zadafiya v. Sub Registrar (Birth and Death) and Deputy Health Officer, East (Varachha) Zone-a

Gujarat HC13 Jul 2022SCA/7191/2022

Case brief

AI extract

What is this about?

Petitioner sought correction of birth certificates to list himself as father of adopted daughters instead of biological father. High Court quashed administrative rejection relying on a 2014 circular and directed fresh consideration based on 2015 and 2018 circulars allowing registered adoption deeds without court decrees for non-institutional adoptions.

What did the court decide?

Quashed impugned order of 07.03.2022; directed respondent to decide petitioner's applications dated 02.03.2022 afresh within eight weeks considering the adoption deed.

Bharatbhai Vallabhbhai Zadafiya Vs Sub… — Child Custody and Guardianship | Gujarat HC (2022)

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7191 of 2022

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BHARATBHAI VALLABHBHAI ZADAFIYA

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Versus

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SUB REGISTRAR (BIRTH AND DEATH) AND DEPUTY HEALTH OFFICER, EAST (VARACHHA) ZONE-A

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========================================================== Appearance:

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MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1,2 MR CJ VIN(978) for the Respondent(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 13/07/2022

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ORAL ORDER

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RULE . Learned advocate Mr. C.J. Vin, waives service of notice of Rule on behalf of the respondent.

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The present writ petition has been filed seeking quashing and setting aside the communication dated 07.03.2022 issued by the respondent seeking a direction on the respondent to amend or correct / mention the name of the petitioner No.1 in the column of “father’s name” as Bharatbhai Vallabhbhai Zadafiya in place of Vinodbhai Tulsibhai Viradiya.

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At the outset, learned advocate Mr.Dholariya, appearing for the petitioners has submitted that the issue is squarely covered by the order dated 24.01.2022 passed in Special Civil Application No.12605 of 2021.

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It is the case of the petitioners that the petitioner No.2 married to Vinodbhai Tulsibhai Viradiya on 09.12.2021. Out of the said wedlock, the first daughter "Srushti" was born on 29.03.2003 and the second daughter “Isha” was born on 25.10.2007. The birth of "Srushti" and “Isha” was registered with the office of Surat Municipal Corporation, East Zone,

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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Surat at Serial No. EZ-2003-2020 and Serial No.EZ200714600 respectively in the Register, which is maintained by the respondent under the Registration of Birth and Death Act. Since the matrimonial disputes cropped-up between the petitioner No.2 and her husband, they decided to get separated and, therefore, they had executed a deed of divorce on 11.02.2017 as per the customs prevailing in their community and thereby, the marriage of petitioner No.2 with her husband came to be dissolved by the said deed. The petitioner No.2 also filed application under Section 7(1)(b) of the Family Courts Act, to get the declaration in that regard which came to be allowed vide Judgment and Order dated 05.01.2019.

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4.2 It is the case of the petitioners that since it was decided by both the parties, that custody of minor daughters "Srushti" and "Isha" will remain with the petitioner No.2. Thereatfer, on 02.07.2017, the petitioner No.1 got married with petitioner No.2 at Surat. The petitioner No.1 also agreed to take all the responsibilities of “Srushti” and “Isha” and, therefore, the petitioners adopted the minor daughters “Srushti” and “Isha” with consent of family members of both the petitioners and pursuant to the said adoption, a deed of adoption came to be executed between the parties, which came to be registered before the office of Sub-Registrar vide Registration No.20781 on 12.10.2017. Thereafter, the petitioner No.1 filed Civil Misc. Application No. 119 of 2019 before the Principal Judge, Family Court, Surat, under Sections 7 and 10 of the Guardians and Wards Act. The Judge, Family Court No.2, Surat vide order dated 04.01.2022 allowed the Application and declared and appointed the petitioner No.1 as guardian of "Srushti"

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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and "Isha" till the minors attain the age of majority. The Family Court also directed that custody of minors "Srushti" and "Isha" shall remain with the petitioner No.1. The Family Court further directed that a guardian certificate be issued accordingly in the name of the petitioner no.1.

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4.3 It is the case of the petitioners that since the petitioner No.1 got married with the petitioner no.2 and since petitioner no.1 adopted "Srushti" and "Isha" by way of execution of a registered adoption deed and in view of the order passed by the Family Court, Surat, the petitioner No.1 becomes natural / legal guardian of minor girls. The petitioner No.1 therefore preferred two applications dated 02.03.2022 before the respondent to replace / mention the name of petitioner No.1 as father in place of name of earlier husband of petitioner no.2 in the column of ‘father’s name’ in the birth certificate of Srushti and Isha. The said application was supported by the necessary documents as enclosed, however, the respondent vide communication dated 07.03.2022 rejected the request of the petitioner No.1.

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Learned advocate Mr.Dholariya, has placed reliance on the circulars dated 15.05.2015 and 31.01.2018 duly issued by the Government of India, Ministry of Home Affairs and submitted that the respondent could not have rejected the application preferred by the writ-applicants in view of the fact that according to the said circulars only a registered adoption deed is mandatory. Learned advocate for the petitioners has further submitted that under the provisions of Section 15 of the Registration of Births and Deaths Act, Act and Rule 11 of the Registration of Births and Deaths Rules also empower the

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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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.

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Learned advocate Mr.Vin, appearing for the respondent has submitted that the impugned order may not be interfered with, since the same is passed in accordance with law in view of the Circular dated 25.08.2014.

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

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The applicaton of the petitioners for correction in the father’s name i.e. the petitioner No.1 instead of name of the biological father in the birth certificate has been rejected by the respondent by placing reliance on the circular dated 25.08.2014 issued by the Government of India, Ministry of Home Affairs. The same reflects that as per the said circular, the petitioners are required to produce the decree of the Court in order to get the name of the father altered in the birth certificate.

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At this stage, it would be apposite to refer to the order dated 24.01.2022 passed in Special Civil Application No.12605 of 2021, by this Court, after considering the circulars dated 15.05.2015 and 31.01.2018 as well as the circulars dated 25.08.2014 referred in the impugned communication has held thus -

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“9. 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 paras read thus:

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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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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The said decree is also registered.

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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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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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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

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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

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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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9.1. Circular dated 15.05.2015 issued by the Government of India, Ministry of Home Affairs, reads thus:-

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“Please refer this office letter of even number dated 12th March, 2012 vide which instructions were issued on framing procedure for making; changing entries in birth adoption, Later on, taken into consideration the 2011 CARA guidelines, a clarification was issued by this office letter of even number dated 25th August, 2014 through which submission of adoption deed and adoption order (both) has been made mandatory for registration of birth of children taken on adoption and issue of birth certificate to them.

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In response to the aforesaid clarification, this office has received certain queries on submission of adoption order and adoption deed in respect of noninstitutional adoptions. In this regard, it has been quoted that non-institutional adoptions are taken place under the provision of Hindu Adoption and Maintenance (HAMA) Act, 1956" and under Section 16 of this Act; the need for production of adoption deed i.e document registered under any law and signed by both parties is sufficient. In this regard, the authenticity of the adoption deed would have to be checked only with the criteria prescribed under the HAMA Act.

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In order to address the difficulties in producing the adoption order by general public in case of adoption within relatives/acquaintances, the matter has been reviewed and also discussed with the Central Adoption Resource Authority (CARA) of Ministry of Women & Child Development. Accordingly, it has been decided that for in country noninstitutional

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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adoptions took place within relations or acquaintances, registered adoption deed is enough, there would be no need to produce adoption order of a court for such cases.

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However, before registering or making corrections in the birth record, the correctness of the adoption deed should be verified by the Registrar of births and deaths and if adoption deed is found to be valid duly registered before the Sub Registrar authorized by the State Government, the concern Registrar should make necessary changes in the birth record on the basis of the information given in the adoption deed and insert the name of adoptive parents and child and issue the birth certificate of the adopted child. Further, it is also clarified that in case of noninstitutional event, if a adopted child is more than one year old and his/ her birth is not-found registered earlier then as per the prescribed procedure of section 13 (3) of the Registration of Births and Deaths (RBD) Act 1969 an order of local Magistrate under the Delayed registration provision should also be obtained before registering the said event.

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In view of the above facts and taken into consideration the difficulties faced by the public in getting the birth certificate of adopted children, you are requested to direct the aforesaid contents to the concerned authorities and direct them to issue the birth certificate of adopted children on priority basis and ensure that desired birth certificate should be issued within 7 to 10 days from the date of submission of documents by the adoptive parents to the concerned Registrar. This office may be appraised about the action taken in this regard.

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9.2. Circular dated 31.01.2018 issued by the Government of India, Ministry of Home Affairs, reads thus:-

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Please -refer this office letter of even number dated 12^th March, 2012 and 25th August 2014 vide which instructions were issued regarding registration procedure on making/ changing entries 'in birth record of children taken on adoption. These instructions were issued taken into consideration the 2011 guidelines of Central Adoption Resource Authority (CARA) under which submission of adoption deed and adoption order (both) were made mandatory for registration of birth and issue of birth certificate of children taken on adoption”

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You may be aware that through the aforesaid directions, adoption order and adoption deed both were made mandatory for registration of birth of adopted children whether through adoption agencies (institutional) or non-institutional adoptions. Later on during 2015, a clarification was issued by this office on 15th May, 2015 through which the system of production of adoption order of a court in case of non-

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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institutional adoptions has been discontinued in the light of the provisions of ‘Hindu Adoption and Maintenance (HAMA) Act, 1956 and registered adoption deed has been made mandatory for such registration",

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Now in respect of adoptions made through institutions i.e. adoption agencies, the Ministry of Women & Child Development has revised its guidelines and notified the same in Gazette Notification dated 0401-2017 as 'Adoption Regulations 2017' wherein removes the clause of production of adoption deed for institutional adoptions and mentioned at section 36 of the new notification that production of adoption order of the Court is sufficient for registration of birth of child adopted through adoption agencies.

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In order to address the difficulties in producing the adoption deed by general public in case of adoption through institutions (adoption agencies), the matter has been reviewed and accordingly, it has been decided not to insist the public for production of adoption deed for registration of birth of adopted child and register the birth event or make necessary correction/ change on the basis of adoption order of the court and issue the birth certificate of the adopted child.

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In view of the above facts, you are requested to direct the aforesaid contents to the concerned registration authorities in the State and direct them to issue the birth certificate of adopted children on priority basis with the name of adoptive parents as parents. This office may be appraised about the action taken in this regard.”

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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 writ-applicants (at page27 to 39 of this petition), the said adoption deed is a registered adoption deed. All other requirements as contemplated under the Act and Rules are also fulfilled by the writ-applicants. There was no reason for the respondent authority not to consider the application made by the writapplicants. As per the aforementioned circulars, the impugned order passed by the respondent / competent authority is not sustainable.”

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Thus, the Circular dated 25.08.2014 has been further diluted by the circular dated 31.01.2018 issued by the Government of India, Ministry of Home Affairs, hence, the impugned order requires to be set aside. The order passed by the respondent dated 07.03.2022 is hereby quashed and set aside.

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C/SCA/7191/2022 ORDER DATED: 13/07/2022

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The respondent authority is directed to decide the application of the petitioner dated 02.03.2022 afresh within a period of eight (08) weeks from the date of receipt of the writ of this order, taking into consideration all the documents which are produced by the present petitioners.

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The writ petition stands allowed in view of the aforesaid terms. Rule is made absolute. Direct service is permitted.

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(A. S. SUPEHIA, J)

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MAHESH BHATI/125

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Bharatbhai Vallabhbhai Zadafiya v. Sub Registrar (Birth and Death) and Deputy Health Officer, East (Varachha) Zone-a

Case brief

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Bharatbhai Vallabhbhai Zadafiya v. Sub Registrar (Birth and Death) and Deputy Health Officer, East (Varachha) Zone-a

Case brief

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