C/SCA/15757/2021 CAV JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.15757 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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CHHAYABEN @ HETALBEN ATULBHAI ASODARIYA
Versus
THE REGISTRAR OF BIRTH AND DEATH/CHIEF OFFICER
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Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1,2
MR KETAN A DAVE(255) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 15/06/2022
CAV JUDGMENT
1. By way of the present petition under Article
226 of the Constitution of India, the
petitioners, being guardians of their minor son
'Devam', are seeking a direction upon the
respondent authority, directing it to amend
and/or correct or mention the name of petitioner
no.2 in the column of "father name" in the Birth
Certificate of their son, which is issued by the
respondent.
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2. The short facts giving rise to filing of the
present petition, stated in nutshell, are as
follows.
2.1 Petitioner No.1 earlier had married with one
Shaileshbhai Vallabhbhai Jadvani and out of
wedlock of petitioner no.1 with the said
Shailesbhai, a son 'Devam' was born on
13.06.2012. Pursuant to that, on 20.06.2012, his
birth was registered with the respondent
authority at serial No.665 in the Register, which
is maintained by the respondent authority under
the Registration of Births and Deaths Act, 1969
(for short "the Registration Act").
2.2 Since matrimonial disputes cropped-up between
the petitioner no.1 and her husband, they decided
to get separated and, therefore, they had
executed a Deed of Divorce on 06.04.2016 as per
their prevailing customs and thereby marriage of
petitioner no.1 with her husband came to be
dissolved by the said deed.
2.3 The petitioner no.1 got married with
petitioner no.2 at Surat. After marriage of
petitioner no.2 with the petitioner no.1, the
petitioner no.2 also agreed to take all
responsibilities of minor son of petitioner no.1
and, therefore, he has adopted the minor son
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'Devam' with consent of the family members of
both the petitioners and pursuant to the said
adoption, a Deed of Adoption has been executed
between the parties, which came to be registered
before the Office of Registrar vide Registration
No.2194 on 15.03.2017.
2.4 It is the case of the petitioners that since
the petitioner no.1 got married with petitioner
no.2 and since petitioner no.2 has adopted minor
'Devam' by way of execution of a registered
adoption deed, the petitioner no.2 becomes
natural/legal guardian of minor boy and,
therefore, the petitioners filed representation
dated 17.07.2021 to the respondent authority to
replace/ mention the name of petitioner no.2 as
father in place of name of earlier husband of
petitioner no.1 in the column of 'father name’ in
the birth certificate issued by the respondent
herein.
2.5 On 15.09.2021, the petitioners received the
impugned communication from the respondent
authority, whereby the application for
correction, as stated above, has been refused by
the respondent.
3. Learned advocate Mr.Kikani appearing for the
petitioners has submitted that even otherwise and
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without prejudice, as per Circulars dated
15.05.2015 and 31.01.2018 issued by the Ministry
of Home Affairs, Government of India, only
registered adoption deed is mandatory and decree
of adoption from the court concerned has been
discontinued. It is submitted that as per
provision of the Hindu Adoptions and Maintenance
Act, 1956 (for short "the Adoptions Act"), only
registered adoption is mandatory. He has placed
reliance on section 16 of the Adoptions Act in
this regard. Thus, he has submitted that the
appropriate orders may be passed.
3.1 In support of his submission, learned
Advocate Mr.Kikani has placed reliance on the
judgements in cases of Sukumar Mehta vs. District
Registrar, Births And Deaths, 1993 (1) G.L.R. 93,
Sejalben Mukundbhai Patel W/o Khodabhai Joitaram
Patel, 2019 (3) G.L.R. 1866 and order dated
15.03.2017 passed in Special Civil Application
No.7864 of 2016 (in the case of Tushar Kanaiyalal
Vyas (Thru. POA) vs. State of Gujarat & Ors.)
4. In response to the above, Mr.Dave, learned
advocate for the respondent authority has very
candidly admitted that the impugned decision was
premised on the circulars dated 12.08.2009 and
18.02.2016, which are subsequently canceled by
the order dated 02.12.2021 issued by the State
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authority. He has submitted that as per provision
of Section 9 of the Hindu Adoptions and
Maintenance Act, the Registrar has to verify
whether the Adoption Deed is valid or not and
hence, the opinion of the biological father of
the child is necessary. It is submitted that as
per Section 9 of the Hindu Adoptions and
Maintenance Act, the biological father has to be
made a party respondent in the writ petition in
order to verify whether the Adoption Deed
produced by the petitioners is legal or valid.
5. I have heard the learned advocates for the
respective parties at length.
6. It is not in dispute that the impugned
decision dated 15.09.2021 is premised on the
circulars dated 12.08.2009 and 18.02.2016, which
stipulates the production of an order of local
court for adoption, have been subsequently
canceled by the order dated 02.12.2021 issued by
the State Authority. Thus, on this ground alone,
the impugned decision is required to be quashed.
However, since other issues are raised in the
writ petition, further order is necessitated.
7. 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.
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.”
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.
8. At this stage, I may with profit refer to the
decisions of this Court. In case of Sukumar Mehta
(supra), this Court, after examining the
provision of section 15 of the Registration Act,
has held thus:
“In my opinion, the Act is silent about the
contingency for subsequent correction of entry already
made in Birth Register by correcting the name of the
child at the instance of the parents, his is the case
of unmindful legislative omission. This is classic
case of casus omissi, i.e., circumstances concerning
which an Act is silent. The question is how to deal
with such contingencies ? Should the Court leave the
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litigant in sheer helpless condition asking him to
wait till the legislature curds the defect by
providing for the omission ? Can the Court escape the
responsibility of considering these unforseen
contingencies? However, I cannot ignore the modern
tendency in Courts to take the view that if a case is
entirely unprovided for by a Statute, either directly
or indirectly, then it must remain nobody's child - a
luckless orphan of the law (In re Leicester Permanent
Building Society, 1942 Ch. 340). Same was the view of
Devlin L. J. in Gladstone V/s. Bower, reported in 1960
(2) QB 384 when he observed "we cannot legislate for
casus omiss". This tendency has given rise to
inconvenient results. One option left for me is to
express regrets for a statutory lacuna and to hope
that it will be remedied by legislation and
occasionally the hope is fulfilled, even if tardily.
However, in my opinion, in this case there is
"impalpable line" of distinction which should enable
the Court to come out of helplessness. In this case"
the caption of Sec. 15 gives general indication to
give power to correct the entry in the Birth Register.
However, specific case of correction of name of the
child already entered is omitted to be provided for.
When the entry is erroneous, there is power to
correct. When it is factually improperly made, there
is power of correction. Question is when entry is
rightfully made can it be corrected by resort to this
power ? In my opinion, once power to correct an entry
already made in the Birth Register is conceded, it
should legitimately take within its sweep the
correction of entries rightfully made. It is the
correction of the name of the child at the instance of
the parents or wards. What possible objections can
there be in reading such power in the authority if
power to correct erroneous entry is conceded ? The
omission in the present case appears to be non-
deliberate. In my opinion, omission being not
deliberate and not supported by cogent reasons it
would not be hazardous to read "implied will of the
Legislators" in this provision so as to authorise the
Registrar to correct the name of the child at the
instance of the parents. I, therefore, hold that there
is power in the Registrar to correct the entry already
made by entertaining the application of the parents.
In undertaking this exercise, I am reminded of what C.
K. Alien said in his book "Law in the Making":
"Judges must and do carry out the express will of
the legislature as faithfully as they can, but
there is a wide margin in almost every statute
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where the Courts cannot be said to be following
any will except their own. The statute then
becomes, as to great part of it, not a direct
"command" but simply part of the social and legal
material which judges have to handle according to
their customary process of judicial logic."
Thus, the Coordinate Bench has held that
while exercising powers under section 15 of the
Registration Act, the Registrar can correct an
entry already made in the Birth Register if the
same is conceded, and such correction should
legitimately take within its sweep the correction
of entries rightfully made, since it is the
correction of the name of the child at the
instance of the parents of wards.
9. In case of Sejalben Mukundbhai Patel (supra),
this Court, after considering various judgments
of this Court, has enunciated thus:
“21 From the aforesaid statutory provisions and the
decisions rendered by this Court, following aspects
would emerge:
(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.
(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.”
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.
10. I may also refer to Sections 9 and 16 of the
Hindu Adoptions and Maintenance Act, 1956, which
reads as under:
“Section 9 - Persons capable of giving in adoption. —
(1) No person except the father or mother or the
guardian of a child shall have the capacity to give
the child in adoption.
(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.
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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.”
Section 16 : Presumption as to registered documents
relating to 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."
11. 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:
"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.
12. Section 16 of the the Hindu Adoptions
and Maintenance Act, 1956, provides as under:
“Whenever any document registered under any law
for the time being in force is produced before
any court purporting to record an
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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."
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, 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."
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.
12. Keeping in mind the aforenoted decisions, I
may deal with the objection taken by the
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respondent authority. It is the case of the
respondent authority that since the biological
father has not given any consent with regard to
the change of father’s name as per section 9 of
the Adoptions Act, he can not change the name of
the father i.e. Atulbhai Gordhanbhai Asodariya in
place of Shaileshbhai Vallabhbhai Jadvani in the
birth certificate. The other objection raised is
that, for ascertaining his consent, he is
required to be arraigned as a necessary party in
the writ petition.
13. It is pertinent to note that a Divorce Deed
dated 06.04.2016, which has been executed between
petitioner No.1 and her former husband -
Shaileshbhai Vallabhai Jadvani as per prevailing
customs. In paragraph No.3 of the said deed, it
was mutually decided that custody of minor son
'Devam' is accepted by the mother-petitioner
no.1. Thereafter, the petitioner no.1 got married
to petitioner no.2, and an adoption deed,
adopting minor 'Devam' was registered on
15.03.2017 vide Registration No.2194. This gave
rise for change in name of the father in the
birth certificate registered at Serial No.665 by
the respondent. An application in this regard was
made to the respondent, but the same was rejected
by the impugned communication asking the
petitioners to produce an order of the local
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court with regard to the adoption. Such reason
was assigned in view of the circulars dated
12.08.2009 and 18.02.2016 issued by the State
Government. Such circulars are subsequently
canceled by the order dated 02.12.2021 issued by
the State Authority. The aforementioned twin
objections are raised in the affidavit-in-reply
filed by the respondent. In the considered
opinion of this Court, neither the consent of the
biological father is required to be obtained by
the Registrar for altering the name of father nor
he is required to be arraigned as a party to the
writ petition, since during the passage of more
than five years, the biological father has
neither raised any objection to the custody of
minor child nor he has raised any objection to
the marriage and subsequent adoption deed of the
minor child. As per the clause of the divorce
deed, the petitioner no.1 - mother was given the
sole custody of the minor child and hence, the
former husband of the petitioner no.1 is deemed
to have given up all his rights with regard to
the minor 'Devam'. The stage of obtaining
consent, as defined under section 9 of the Hindu
Adoptions and Maintenance Act, 1956 cannot be
invoked at the stage of incorporating the
father’s name (adoptive) in the birth record of
the son, after the divorce and adoption deeds
have been registered and have not be questioned
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in any court of law or there is no other legal
embargo and have remained uncontroveted. Thus,
neither the biological father, i.e. the former
husband of the petitioner no.1 is required to be
made as a party to the writ proceedings for
ascertaining his consent nor his opinion is
necessary to be called for by the Registrar. The
petitioner no.1 and 2 are happily married couple
since more than five years and the adoption deed
is also of 15.03.2017.
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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15. As noticed hereinabove, the impugned
communication since is premised on the circulars,
which are not in existence, the same is quashed
and set aside. The respondent authority is
directed to correct the father's name and
incorporate the name of the petitioner no.2 in
the birth certificate of son 'Devam' and
accordingly issue a fresh certificate. The same
shall be issued within a period of 01 (one) month
from the date of receipt of the present order.
16. The petition is allowed accordingly. Rule
made absolute to the aforesaid extent.
Sd/- .
(A. S. SUPEHIA, J)
***
Bhavesh-[PPS]*
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