ORDER
Kundan Singh, J.
1. By means of this petition, the petitioner has prayed for a direction to the respondent authority i.e., District Registrar, Birth and Death and Chief District Health Officer, District Panchayat, Surat to correct the birth record of the petitioner by making correction in the column of sex from female and male.
2. It is stated that the petitioner was born on 7-5-1979 in village Orna, Ta : Kamrej, Dist : Surat. At the time of his birth, the parents of the petitioner could not identify the sex of the child as male or female as extraordinary genitals were ambiguous. From the petitioner’s private part. It looked more like that of a female and hence the parents of the petitioner got the name registered in the name of register of birth as female child. As private parts of the petitioner showed some deformity, the parents of the petitioner consulted the doctor at the relevant point of time. The doctor advised to get the child medically examined every year in the course of his growth. The petitioner’s parents consulted their family doctor, who advised the petitioner’s parents Dr. Bharat Shah. Dr. Bharat Shah examined the petitioner by taking several tests and opined that the petitioner has got hidden male organ and has no symptoms of a female and hence advised to consult an expert surgeon. Thereafter, the petitioner was taken to All India Institute of Medical Science, New Delhi where the petitioner was examined by Dr. Gupta, Head of Paediatrics Department, where several tests were carried out. Dr. Mayur Lekhadia, by operation, exposed hidden male organ of the petitioner and thereafter, Dr. Pradip Atodaria performed other necessary operations. On the diagnosis of several doctors, real sex of the petitioner could be known that the petitioner is male and not female. Hence, the petitioner has filed the present petition for a direction to the respondent as stated above.
3. In spite of service of notice, the respondents have not filed any affidavit-in-reply. Heard the learned counsel for the parties.
4. In support of his arguments, the learned counsel for the petitioner also placed reliance on the decision of this Court in the case of Vimal M. Patel v. State of Gujarat reported in AIR 2001, Gujarat, 311 wherein it has been held that there is a bona fide mistake on the part of the petitioner regarding name of his child and that mistake is only an error in the form and that can be corrected by the Registrar-respondent No. 2. He also placed reliance on the decision of this court reported in (2001) 2 Guj LR.01 : (AIR 2001 SC 938), it has been held that the Registrar has power to make necessary correction in the entries made in the Register of Births and Deaths. They are not erroneous in the form or substance or fraudulently or improperly made in that case. In that case, this Court directed the authority to make an inquiry within reasonable time and pass consequential orders of granting change in the entry regarding sex in the Birth and Death Register and issue a certificate of such entry.
5. He further relied on the decision of this Court in the case of Dr. Sukumar Mehta v. District Registrar, Births and Deaths, reported in (1993) 1 Guj LR 93 has held as under :
“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. This is the case of unmindful of 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 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 unforeseen 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. Bower, reported in 1960 (2) QB 384 when he observed “we cannot legislature 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 Section 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 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.”
6. The learned Assistant government Pleader could not controvert the above proposition of law laid down by this Court and substantiate any ground to hold otherwise.
7. I have carefully examined the contentions raised by the learned counsel for the parties and I am of the view that the respondent No. 1 has the authority and power to correct the birth record by correcting sex of the petitioner in the column of sex from female to male. The petitioner had made an application before the respondent No. 1 for the aforesaid correction in the birth and Death register, but that application has been rejected mechanically vide order dated 17th August, 2002 on the ground that such correction cannot be made under the provisions of Birth and Death Registration Act, 1969.
8. In the facts and circumstances, the order passed by the respondent No. 1 is liable to be set aside and this petition requires to be allowed. Accordingly, this petition is allowed. The order dated 17th August, 2002 of the respondent No. 1 is hereby quashed and set aside. The respondent No. 1 is hereby directed to make necessary correction in the sex of the petitioner from female to male in the column of sex. Rule made absolute accordingly with no order as to costs.