IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14350 of 2010(P)
1. KALLARAKKAL DELNA MARIYA LENIN,
... Petitioner
Vs
1. THE KODUNGALLOOR MUNICIPALITY,
... Respondent
2. THE REGISTRAR OF BIRTH AND DEATH,
For Petitioner :SRI.AJITH KRISHNAN
For Respondent :SRI.M.P.ASHOK KUMAR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :15/07/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 14350 of 2010-P
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Dated this the 15th day of July, 2010.
JUDGMENT
The request for correction of entries in the birth register having been
rejected by the second respondent, Registrar of Births and Deaths of
Kodungallur Municipality, the petitioner has filed this writ petition through
her guardian and mother.
2. The petitioner is a minor girl aged 7 years, represented by her
mother. In the certificate issued by the Municipality which is produced as
Ext.P1, her name is shown as “Delna Maria K.L.”, the name of father is
shown as ” Lenin K.T.” and mother’s name is shown as “Shiji K.R.”.
Exts.P2 and P3 are copies of the relevant pages of the passport issued to the
parents of the petitioner. Therein, the father’s name is shown as
“Kallarakkal Thomas Lenin” and that of the mother “Lenin Shiji”. They are
employed and settled in Italy. The petitioner is pursuing her studies in
Kerala now and the parents want her to be taken to Italy next year. She
requires passport for going abroad. Since the entries in the birth register
may not tally with the passport of the parents and also the entries should
contain the expansion of the initials of the petitioner, an application was
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filed seeking correction of various entries.
3. Pursuant to the directions issued in W.P.(C) No.12139/2010
Ext.P6 order was passed by the second respondent. In Ext.P6 the reasons
stated are mainly that: as the minor girl is studying in Class II and going by
the circular issued by the Government dated 21.1.2010, the change of name
can be made only once prior to the admission of the minor in the school and
therefore the application cannot be allowed. Para 7 of the circular is also
relied upon to hold that even though the current entries contain the initials,
unless the real name is one which is inclusive of initial and sur name, no
correction can be made.
4. Heard learned counsel for the petitioner and learned Standing
Counsel for the respondents.
5. The respondents have filed a statement as well as a counter
affidavit.
6. Learned counsel for the petitioner submitted that the application
of the petitioner ought to have been allowed in the light of the power
conferred under Section 15 of the Registrar of Births and Deaths Act, 1969
and the Rules therein and in the light of the decisions of this Court rendered
in similar cases which permit such correction. Reliance is placed on the
decisions of this Court in Meena v. Corporation of Cochin (2004 (2) KLT
wpc 14350/2010 3
1118), Sivanandan v. Registrar of Births and Deaths (2007 (3) KLT
721), Varghese v. Director of Panchayats (2008 (2) KLT 278) and
Chalakudy Municipality and another v. Malavika and another (ILR
2009 (4) Ker. 591). It is pointed out that unless the corrections are
effected, the petitioner will not be able to reach her parents, as the laws in
that country insists for such proper certificates including expansion of the
initials. It is submitted that the names of the parents as per the passport
could be included in the birth register. It is further pointed out that the birth
certificate of the petitioner’s brother Danny Lenin contains all the details.
Therein, the name of the father is given as “Kallarakkal Thomas Lenin”,
mother’s name as “Lenin Shiji” and that of the boy as “Danny Lenin”.
7. The circular issued recently by the Government has been produced
as Ext.P7. Para 7 of the circular states that if the real name includes initial
and sur name, the same could be entered in the birth register. This is also
relied upon by the learned counsel for the petitioner to show that what is
sought for is permissible as per the circulars also.
8. Learned counsel for the respondents submitted that going by the
entries in the school register of the parents, their names have been shown as
“K.T. Lenin” and “Shiji Raphel”. There is no provision to change the name
wpc 14350/2010 4
in the birth register. Only an error or mistake in the birth register alone can
be corrected.
9. Section 15 of the Registration of Births and Deaths Act confers
power for correction or cancellation of entries in the register of births and
deaths. Going by the same, if an entry in the birth register is erroneous in
form or substance, the Registrar is having power to correct the same. The
question is whether a mistake or error in the details in the birth register
alone is liable to be corrected. This question is no longer res integra. The
recent decision of a Division Bench of this Court in Malavika’s case (ILR
2009 (4) Ker. 591) has elaborately considered this question. After referring
to the legal provisions and the circular dated 24.3.11997, issued by the
Chief Registrar, it was held thus in para 4:
“Going by the purpose of the enactment and the scheme for
registration and for correction in the entries therein, it is
unambiguously clear that corrections either in form or substance is
permissible. The only pre-condition is that the Registrar should be
satisfied that the entry in the register regarding birth or death was
erroneous in form or substance or the same has been fraudulently
or improperly made. The entry in the register means the entries on
the name and the particulars regarding the relationship, place and
date. If the correction is sought within five years, the satisfaction
need only be at the level of the Registrar and if the correction is
wpc 14350/2010 5
sought to be made after five years, the corrections can be made
only on the satisfaction of the Chief Registrar. The identity of the
person concerned is the crucially relevant factor, as far as
correction of the name is concerned and as far as the correction of
the date, place and other particulars are concerned, in case there
had been any mistake, in the original entry and if the Registrar is
satisfied that the same is erroneously entered, he has to exercise his
power to permit the correction. The law does not contemplate a
person to have a wrong name in the register or a mistaken identity
in the register or to have wrong particulars regarding the date,
place etc. in the register of birth or death. It is also to be noted that
the Registration of Births and Deaths Act, 1989 does not create or
extinguish any right; the Act is intended only to regulate the
process and procedures of registration of births and deaths and the
correction of any such entry. Once the Act permits such correction
either in form or substance, the Rules are intended only to regulate
the procedure and not to prohibit such correction. The subordinate
legislation by way of rules, notifications, circulars etc. cannot
restrict the scope of the plenary legislation. Conversely they
cannot expand the scope either as far as the correction of the
entries in the register of birth or death is concerned. Section 15
only contemplates that the Registrar should be satisfied as to the
mistake in the entry. The section clearly states that the correction
can either be in the form or substance also. Rule 11 would also
indicate that once the Registrar is moved for correction of any
entry in the register of birth or death, it is mandatory on his part to
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enquire into the matter and once he is satisfied that the entry is
erroneous, the rule mandates that the correction should be made as
required under Section 15 of the Act.”
Therefore, as far as the correction of name of the person is concerned, the
identity is the crucial relevant factor. Significantly, the Bench was of the
view that the law does not contemplate a person to have a wrong name in
the register or a mistaken identity in the register or to have wrong particulars
regarding the date, place etc. in the register of birth or death. Therein, going
by the facts of the case, the Municipality was approached for correction of
the name of the father in the register of births. The petitioner’s father’s name
was ‘Sajeev Velappan Nair’, but the entry in the register was ‘Sajeev N.
Nair.’ A fresh certificate was directed to be issued with the change of name
of the father as sought for. The said direction was upheld by the Division
Bench. Therefore, it is very clear that going by the facts of the said decision
also, such changes with regard to the name could be entered in the birth
register.
10. In Meena’s case (2004 (2) KLT 1118, the situation considered
was almost identical to the one available herein. Therein also, the parents
were in possession of passports which showed the names in expansion and
the parents are working outside India. The father’s name, viz. ‘T. Ajith
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Kumar’ was sought to be corrected as shown in the passport, viz. ‘Ajith
Kumar Thykoodathil’ and the name of the mother and the child also were
sought to be corrected. This Court considered the issue in the light of the
provisions of circulars as well as Section 15 of the Act and Rule 11 of the
relevant rules. It was held in para 11 that “Thus it is clear that in
appropriate cases, conforming to the procedure, corrections are indeed
permitted.” Regarding the stipulations contained in the circulars, this Court
was of the view that there is ample discretion for the authorities concerned
and that the circulars will not in any way inhibit the discretion that has been
vested with the authorities under the Rules. Finally, it was held in para 16
thus:
“When the basic objectives itself is accurate statistics, the minor
details regarding the name and similar entries have not much of
relevance, from the point of view of the enactment. As pointed out
by counsel for the petitioner, because of computerization and
globalization, even small errors which might have been
inconsequential during the past decades presently pose problems
from unexpected quarters. Accuracy in the entries pertaining to
Birth Register was to be ensured, so as to ward off such situation.
Therefore, effort should be there on the part of the authorised
officers to see that assistance is extended to persons who have
genuine grievances. Instead of a technical approach, a realistic and
wpc 14350/2010 8
helpful attitude is always expected, subject to statutory
prescriptions. The standing counsel agree with this proposition.”
Accordingly, it was ordered that a correction as requested in respect of not
only the name of the child as well as of the description of the parents, may
be effected. This is evident from para 18 of the judgment.
11. Varghese’s case (2008 (2) KLT 278) concerns a case of
correction of the name of the child itself. There, the name that was entered
in the register was ‘Neenu Varghese.’ It was sought to be corrected as
‘Niya Varghese.’ An objection was taken by the respondents therein that
such a correction cannot be allowed. After considering the power conferred
under Section 15 of the Act, it was held as follows:
“The power of the Registrar to make corrections in the names of
persons by virtue of S.15 after conducting enquiry as envisaged by
R.12 of the Registration of Births and Deaths Rules 1990 cannot be
in doubt especially in the light of the Circular No.B1-2815/2007
dated 07/11/2007 of the Chief Registrar, which is binding on the 2nd
respondent cannot be in doubt. What the second respondent
contends is that he is not prepared to construe the original entry as
erroneous since the same was made on the basis of a joint
application filed 5 years after the child’s birth was reported by the
hospital to the Corporation. To err is human and when the father of
the child obviously with the concurrence of his wife, the mother of
the child, who were joint applicants before the Corporation
wpc 14350/2010 9
declares that the entry of the child ‘s name entered on the basis of
the joint application is erroneous, I do not find any special
circumstances attending on this case to suspect the bona fides of the
request of the petitioner.”
A direction was issued to change the name as ‘Niya Varghese’.
12. In Sivanandan’s case (2007 (3) KLT 721), it was held that “the
Registrar would be well within authority to act under Section 15 and correct
an error if it is an error in “substance” without insisting that such error can
be corrected only if it is a formal or a clerical one. In doing so, in view of
the absence of any guidelines in that regard, by way of primary or
subordinate legislation, the Registrar, being a statutory and public authority,
is bound to act in terms of justice, equity and good conscience and to follow
the principles of natural justice and other recognised canons for the exercise
of statutory power.” Therefore, the power is available to correct an error if
it is an error in substance also.
13. In the light of the principles discussed in the above decisions and
particularly in Meena’s case (2004 (2) KLT 1118) and Varghese’s case
(2008 (2) KLT 278) wherein the correction in the names were directed to be
allowed by this Court, learned counsel for the petitioner is justified in
submitting that power is therefore explicit for allowing such a correction.
wpc 14350/2010 10
The reasons stated in Ext.P6 therefore cannot survive. The first reason
shown is that correction in the name of the child can be made only prior to
the admission of the child in the school. The very same circular was
considered by this Court in Shipna Jose v. Registrar (2010 (2) KLT 978)
and it was held that the stipulations in the said circular in that regard is not
a correct understanding of the dictum laid down in Girijan v. Registrar of
Births and Deaths (2003 (2) KLT 22). It was held that the circular,
especially para 1 will not stand in the way of the Registrar considering the
application on its merits merely because it was submitted after joining the
school. Actually, this Court noticed that one sentence in the heading of the
headnote of the judgment in Girijan’s case (supra) has been wrongly relied
upon while issuing the circular dated 21.1.2010. On that ground itself, the
first reason stated in Ext.P6 cannot be supported.
14. The second reason stated is that only if the real name includes
initial and sur name, then alone the corrections can be made. Herein, the
stipulations in para 7 of the circular show that if the real name includes
initials and sur name, the same can be entered in the register. As far as the
petitioner’s case is concerned, at the relevant time when the entry was
made, the names including that of the petitioner and her parents were
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entered with initial. When the circular, as on today, permits inclusion of
initials along with sur name, merely because at the time when the entry was
made that was not done, will not result in denial of the benefit to the
petitioner.
15. Herein, evidence is available to justify the correction in the light
of the entries in the passport of the parents, as Exts.P2 and P3. The
petitioner is justified in relying upon Ext.P9, the certificate issued in the
name of her brother who was born on 12.9.2000 whereas the petitioner was
born on 28.6.2002. The correction sought for herein tallies with the name
of the parents entered in Ext.P9. Of course, that was done by the Registrar
of Births and Deaths of another Panchayat. This can also be considered by
the second respondent. This is for the reason that the children should not
suffer in future because of the absence of details in the birth register.
16. Even though learned counsel for the respondents submitted that
the correction of name of the mother cannot be made as sought for, in the
light of the fact that what is sought for to be added is only the name of the
husband along with her name which is the usual practice that is adopted
after the marriage, the same can be allowed. As far as the name of the
father is concerned, his name is shown as Lenin K.T. and the correction
sought for as ‘Kallarakkal Thomas Lenin’ is only expansion of the initials.
wpc 14350/2010 12
As regards the petitioner, the correction sought for is addition of the sur
name, evidently by expansion of the initials “K.L.”.
For all these reasons, I am of the view that the second respondent was
not right in rejecting the application as per Ext.P6. Therefore, Ext.P6 is
quashed. The corrections can be allowed in the light of the principles stated
by this Court in the decisions quoted above. There will be a direction to the
second respondent to consider the application in the light of the findings
rendered above and appropriate orders will be passed and a revised birth
certificate will be issued to the petitioner within three weeks from the date
of production of a copy of this judgment.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
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