Allowed

Mini Moonjelil v. State of Kerala

Kerala HC20 Oct 2020WP(C)/30087/2019

Case brief

AI extract

What is this about?

Peitioner resident in Switzerland sought late birth registration. Court directed Registrar to issue non-availability certificate within two weeks if application was complete, empowering Sub Divisional Magistrate to issue order under Section 13(3) of the Act, 1969 within four weeks, followed by expeditious issuance of Birth Certificate.

What did the court decide?

Directing 3rd respondent to issue Non-availability Certificate within two weeks; 2nd respondent to pass order under Section 13(3) within four weeks; 3rd respondent to issue Birth Certificate.

Mini Moonjelil Vs State of Kerala — Service and Employment | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942

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WP(C).No.30087 OF 2019(I)

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PETITIONER:

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MINI MOONJELIL, AGED 52 YEARS, D/O. LATE JACOB KOCHUTHAYIL, MOONJELIL HOUSE, CHERAI P.O., PARUR, PIN-683 514, NOW RESIDING AT ZURICH, SWITZERLAND, REPRESENTED BY HER POWER OF ATTORNEY HOLDER OSBEN MANUEL GOMEZ, AGED 35 YEARS, S/O. RALPH WILLIAM GOMEZ, EMMANUAL VILLA VADUTHALA P.O., KOCHI-682023.

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BY ADVS. SRI.REJI GEORGE SRI.A.M.NASEER SRI.BINOY DAVIS

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

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2 THE SUB DIVISIONAL MAGISTRATE, REVENUE DIVISIONAL OFFICE, OPPOSITE TO DISTRICT COURT COMPLEX, SH40, THODANKULANGARA, ALAPPUZHA-688 013.

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3 THE REGISTRAR FOR BIRTH, DEATH AND MARRIAGE CHERTHALA MUNICIPALITY, ALAPPUZHA, PIN-688 524.

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BY ADV. SRI.JOBY CYRIAC GOVERNMENT PLEADER SMT RASHMI K.M.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC.30087/2019

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J U D G M E N T

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Dated this the 20^th day of October, 2020

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The petitioner, who is presently working as a

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Nurse in Switzerland, is seeking to issue a writ of Mandamus commanding the respondents to register the birth of the petitioner showing her date of birth as 31.05.1966 and issue a Birth Certificate to the petitioner.

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The petitioner states that she was born on 31.05.1966. The Registration of Births and Deaths Act, 1969 came into force on 01.04.1970 subsequent to her birth. Therefore, the petitioner's birth was not registered under the Act.

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The petitioner is due to retire from her service in Switzerland soon. In order to pay her the retirement benefits, the employer insists production of her Birth

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WPC.30087/2019

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Certificate. The petitioner therefore approached the 3^rd respondent-Registrar of Birth, Death and Marriage of Cherthala Municipality. The 3^rd respondent informed the petitioner that she will have to first register her birth in accordance with the provisions of the Registration of Births and Deaths Act, 1969. As the registration of births is delayed for more than one year, it will be possible only under an order of the 2^nd respondent-Sub Divisional Magistrate.

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Therefore, the petitioner approached the 2^nd respondent-Sub Divisional Magistrate seeking an order to register her birth under Section 13(3) of the Act, 1969. The 2^nd respondent, however, insisted that the petitioner should produce a Non-availability Certificate in Form No.10, certifying that petitioner's birth is not found registered at the office of the 3^rd respondent. The petitioner therefore again approached the 3^rd respondent and sought issuance of Non-availability Certificate. The 3^rd respondent, for no

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WPC.30087/2019

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conceivable reason, has not issued the Non-availability Certificate so far.

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Heard learned counsel for the petitioner, learned Government Pleader for respondents 1 and 2 and learned Standing Counsel for the 3^rd respondent.

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It is an admitted position that the petitioner's birth was prior to the coming into force of the Registration of Births and Deaths Act, 1969. The petitioner approached the 3^rd respondent for issuance of a Birth Certificate. Rightly, the 3^rd respondent pointed out that the petitioner has to register her birth first in order to obtain a Birth Certificate. As there is considerable delay in registering the birth, an order of the Sub Divisional Magistrate is required under Section 13(3) of the Act, 1969.

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Though the petitioner approached the 2^nd respondent-Sub Divisional Magistrate, the 2^nd respondent insisted to make available a Non-availability Certificate in Form No.10. The Power of Attorney Holder of the petitioner

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WPC.30087/2019

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has produced the original Power of Attorney before the 3^rd respondent for processing the application for issuance of Non-availability Certificate. Issuance of non-availability certificate, registration of birth and issuance of Birth Certificate, all are statutory in nature. Therefore, there is no reason why requisite orders are not passed in this writ petition enabling the petitioner to get a Birth Certificate.

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In the circumstances, the writ petition is disposed

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of directing the 3^rd respondent to issue a Non-availability Certificate to the petitioner, if her application for the same is complete and supported by payment of requisite fee, if any. This shall be done within a period of two weeks. On receipt of Non-availability Certificate, the petitioner or her Power of Attorney Holder may produce the same before the 2^nd respondent for issuance of necessary order under Section 13(3) of the Act, 1969. The 2^nd respondent shall pass orders within four weeks from the date of receipt of a copy of the application along with Non-availability Certificate. Upon

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WPC.30087/2019

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receipt of order of the 2^nd respondent, the 3^rd respondent shall take expeditious steps to issue Birth Certificate to the petitioner without further delay.

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Sd/-

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N. NAGARESH, JUDGE

aks/20.10.2020

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE SECONDARY SCHOOL LEAVING CERTIFICATE ISSUED IN THE NAME OF THE PETITIONER.

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EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT NO.J3767594 ISSUED BY THE EMBASSY OF INDIA, BERNE (SWITZERLAND) IN THE NAME OF THE PETITIONER.

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EXHIBIT P3 TRUE COPY OF THE PERMANENT ACCOUNT NUMBER CARD ISSUED IN THE NAME OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE AADHAAR CARD ISSUED IN THE NAME OF THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 21.3.2019 SENT BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 1.8.2019 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXHIBIT P7 TRUE COPY OF THE BIRTH REPORT DATED 28.2.2019 IN FORM NO.1 PRODUCED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH EXT.P6 APPLICATION.

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EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT SWORN BY SMT. THRESSIAMMA, DATED 23.2.2019 PRODUCED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH EXT.P6 APPLICATION.

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EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT SWORN BY

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WPC.30087/2019

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SRI.P.J.JOSEPH, DATED 26.2.2019 PRODUCED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH EXT.P6 APPLICATION. EXHIBIT P10 TRUE COPY OF THE POSTAL RECEIPT NO.RL443508745IN DATED 2.8.2019. EXHIBIT P11 A TRUE COPY OF THE RECEIPT DATED 15.9.2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

Mini Moonjelil v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mini Moonjelil v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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