Gujarat High Court Laments 'Stereotyped Orders' By Registrar Refusing To Make Changes To Birth Certificates

The Gujarat High Court has directed the State Government to take appropriate steps to ensure that court orders on power of the Registrar to make changes to entries in the register of births and deaths are brought to the notice of the competent authorities. 

This, after the court lamented that even though there were a "plethora of judgments" setting aside orders where the Competent Authority had refused to exercise the jurisdiction vested under the Births and Deaths Registrations Act, yet same "stereotyped orders" were being passed time and again refusing exercise of the power. 

The court was hearing a man's plea, who after adopting his wife's daughter from her first marriage, had sought replacement of the biological father's name in the girl's birth certificate with his name.

Justice Hemant M Prachchhak referred to High Court's 2008 decision in Nitaben Nareshbhai Patel Vs. (The) State of Gujarat and Others where the court had exhaustively dealt with the refusal of the Competent Authority to exercise power in similar cases.

In this judgment the court had held that "when the authority empowered to exercise power under Section 15 of the (Births and Deaths Registrations) Act and Rule 11 of the State Rules, 2004, refuse to do so, writ petition is maintainable under Article 226 of the Constitution of India for issuing appropriate directions to the authority".

The court thereafter said:

"The principles of law enunciated in the above quoted judgment would squarely apply in the present case. It is disheartening to note that even though this Court has, on various occasions, rendered a plethora of judgments setting aside the orders whereby the Competent Authority has refused to exercise the jurisdiction vested in him by the statute, the same kind of stereotyped orders are being passed time and again, refusing to exercise the power vested by law. It would, therefore, be appropriate to direct the State Government to take appropriate steps, so that the judgments rendered by this Court in this regard are brought to the notice of the competent authorities under the Act so as to put an end to continuous multifarious litigation on an issue that has already been decided. Respondent No.1 is, therefore, directed accordingly". 

The court referred to Section 15 of Births and Deaths Registrations Act which pertains to Correction or cancellation of entry in the register of births and deaths. 

The provision states that if it is proved to the Registrar's satisfaction that birth or death entry in any register kept by him, is erroneous in form or substance, or has been fraudulently or improperly made, then he may, subject to such rules as may be made by the State Government, correct the error or cancel the entry by suitable entry in the margin. This is to happen without any alteration of the original entry, and the Registrar shall sign the marginal entry and add thereto the date of the correction or cancellation.

The court also referred to Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004, which lays down the procedure for correction or cancellation of an entry in the Register of Births and Deaths. 

"A combined perusal of Section 15 and Rule 11, as reproduced above, leaves no manner of doubt that respondent No.2 is vested with the power to make a correction in an entry in the Register of Births and Deaths and, therefore, in the Birth Certificate," the court said. 

The wife of petitioner was earlier married to another man and had a daughter out of the said wedlock. Her divorce with her former husband took place on 02.03.2022 which was via mutual consent.

As per the deed, the responsibilities and custody of minor daughter were with the petitioner's wife. She thereafter married the petitioner and they both adopted her minor daughter wherein an Adoption Deed was executed and registered before Sub Registrar.

It was submitted that the petitioner wanted to replace the name of the girl's biological father with his name in the birth certificate and had thus applied to the Registrar of Birth and Death for the same. 

However the authority refused to replace the name in the birth certificate on the ground that an order from a Competent Court is required to effect such change or correction in the birth certificate and there is no other provision for the same, except to get a court order. Against this the petitioner moved the high court

The petitioner's counsel submitted that the issue had been decided by the court in  Nitaben Nareshbhai Patel Vs. (The) State of Gujarat and Others (2008) wherein it was held that when the Competent Authority fails to exercise the powers conferred by the statute, a writ of mandamus can certainly be issued to such authority to act in accordance with the provisions of the statute. 

The Assistant Government pleader submitted that  in view of the principles of law enunciated in the Nitaben Nareshbhai Patel judgment, the Court may pass an appropriate order.

In the present case the court held that the Registrar had "simply refused to exercise the jurisdiction vested in him by the statute, by conveniently putting the onus on the Court".

The court said that when the statute has conferred power upon the respondent, it is incumbent upon him to exercise it judiciously and in accordance with law.

"There is no justifiable reason why respondent No.2 has refused to act in accordance with law and decide the application of the petitioner. Hence, the impugned order deserves to be quashed and set aside," the court said.

Partly allowing the plea, the court directed the petitioner to file an application before the respondent – authority within a week and directed the authority to decide it as early as possible, preferably within 4 weeks in accordance with law. 

Case title: X v/s  STATE OF GUJARAT & ANR.

R/SPECIAL CIVIL APPLICATION NO. 2710 of 2024

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