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Whether registrar of birth can correct the applicant’s surname and date of birth in his birth certificate?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

WRIT PETITION STAMP No.9805 OF 2020

Smt. Archana w/o. Prakash Tamhane,

Vs

The State of Maharashtra,

Coram : R.K. Deshpande And Pushpa V. Ganediwala, JJ.
Date : 28 th October, 2020 .

ORAL JUDGMENT : (Per : R.K. Deshpande, J.)

Hearing was conducted through Video Conferencing and the learned Counsels agreed that the audio and visual quality was proper.

2) Rule, returnable forthwith. Ms. H.N. Jaipurkar, learned Assistant Government Pleader waives service of notice for respondent no.1. Shri Amit Kukday, learned Counsel waives service of notice for respondent nos.2 and 3 and has filed reply on affidavit. Heard finally by consent of learned Counsels appearing for the parties.

3) On 6/2/2020, the petitioner applied to the respondent no.3 for correction of date of birth and surname in the birth register (for short, “said register”) maintained under the Registration of Births and Deaths Act, 1969. According to the petitioner, her maiden name was Sulochana Laxmanrao Kotwal, but the surname of her father in the said register is wrongly shown as Laxman Gajanan `Kotawat’. Similarly, according to her, the date of birth shown as 23/1/1954 is wrong and it should have been 24/1/1954 – the reason for such correction being that she was born in the intervening night of 23/1/1954 and 24/1/1954 at 1.30 a.m. This application is rejected by order dated 24/3/2020 passed by respondent no.3 on the ground that the claim of the petitioner for change in the date of birth cannot be entertained.

4) The undisputed position is that the date of birth of the petitioner in the said register is shown as 23/1/1954 and the name of her father is shown as Laxman Gajanan Kotawat. Relying upon the provisions of Rule 11(1) of the Maharashtra Registration of Births and Deaths Rules, 2000 (for short, “said Rules”), it is urged that there is no prohibition for correcting date of birth in the register. On 23/10/2020, we passed an order as under :

“Issue notice for final disposal of the matter, returnable on 28.10.2020. Mrs. H.N. Jaipurkar, learned AGP for respondent No. 1 and Shri S.M. Puranik, learned counsel for respondent Nos. 2 3, waive notice. Relying upon Rule 11(1) of the Maharashtra Registration of Births and Deaths Rules, 2000, (hereinafter referred to as Rules of 2000) reproduced at page 6 in the petition, Shri Mohgaonkar, learned counsel for the petitioner has urged that the correction in the date of birth is also possible. He submits that the petitioner was born at 1.30 in the intervening night of 23rd and 24th January 1954 and, therefore, the date of birth entered in the register should have been 24th January 1954 and not 23rd January 1954. He further submits that in all other records, the date of birth is shown as 24th January 1954.

The factual position is that the petitioner was born at 1.30 A.M. in the intervening night of 23rd 24th January 1954. It does not seem to be disputed question of fact. Prima facie, therefore, the date of birth should have been shown as 24th January 1954.

The question of competency of the respondent to change entry in the date of birth after lapse of so many years needs to be considered, unless there is a rider of the period during which the application for correction in the date of birth register is prescribed. Prima facie, it may be permissible for the respondent under Rule 11(1) of the Rules of 2000 to carry out such correction.

Shri Puranik, learned counsel seeks time to take instructions in the matter.

List the matter on 28.10.2020.”

5) In response to the aforesaid order, the respondent nos.2 and 3 have filed an affidavit taking a stand that relevancy is attached to the public record under Section 35 of the Indian Evidence Act. As per the guidelines issued by the Government of India, Ministry of Home Affairs on 30/6/2015 as well as the instructions issued by the Government of Maharashtra, Health Department on 17/11/2015, the date of birth in the said register cannot be corrected.

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6) The most relevant fact that the petitioner was born at 1.30 a.m. in the intervening night of 23/1/1954 and 24/1/1954 is not in dispute. In the School leaving certificate issued by M.P. Deo Smruti Lokanchi Shala, Mahal, Nagpur in the year 1969, the date of birth of the petitioner is shown as 24/1/1954. The same date is incorporated in the certificate issued by the Maharashtra State Board of Secondary Education. In the service record of the petitioner in the UCO Bank, the date of birth is shown as 24/1/1954. The petitioner took voluntary retirement in the year 2000. The two sons of the petitioner, namely, Abhijeet and Amitabh after completing their education from Mumbai University are settled down in USA. The petitioner is facing problem for getting Green Card from the USA Authorities because of the discrepancies in the date of birth and surname appearing in the said register and the other records pointed out above.

7) Rule 11(1) of the said Rules is reproduced below :

“11(1) If it is reported to the Registrar that a clerical or formal error has been made in the register or if such error is otherwise noticed by him and if the register is in the possession, the Registrar shall enquire into the matter and he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in Section 15 and shall send an extract of the entry showing the error and how it has been corrected will be communicated to the Deputy Chief Registrar of Births and Deaths, Maharashtra State, Pune.”

After going through it, we find that the clerical or formal error made in the register can be corrected by the competent Authority upon the satisfaction that such error is genuinely occurred. There is no time limit prescribed for making such corrections.

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8) In paragraph 6 of the affidavit, the stand taken by respondent nos.2 and 3 is as under :

“6. It is submitted that the petitioner made an application 27.02.2020 after obtaining the Birth Certificate 30.12.2019. It is submitted that on the basis of application and the record available with the Corporation, the application of the petitioner was decided on 24.03.2020. It is submitted that while deciding the application it is mentioned that correction in the date of birth cannot be made, however correction in the surname can be made. It is submitted that the answering respondent on its own would correct the typing mistake as regards to the surname of the petitioner. It is submitted that the date of birth cannot be changed being a relevant fact as per Section 35 of the Evidence Act.”

In view of the aforesaid stand taken, we do not find any difficulty in carrying out the correction in the surname of the petitioner in the said register. So far as correction in the date of birth is concerned, it is an obvious mistake in entering the date of birth as 23/1/1954, particularly when the petitioner was born at 1.30 a.m. in the intervening night of 23/1/1954 and 24/1/1954. Such obvious mistake, in our view, can be corrected.

9) In view of above, this writ petition is allowed and the impugned order dated 24/3/2020 at Annexure “I” to the petition, passed by respondent no.3 is quashed and set aside. The respondent nos.2 and 3 are directed to carry out the correction in the register maintained under the Registration of Births and Deaths Act, 1969 in the date of birth as well as in the surname of the petitioner. The date of birth of the petitioner be changed from 23/1/1954 to 24/1/1954 and the surname be corrected as “Kotwal” in place of “Kotawat”. The petitioner be issued fresh birth certificate incorporating the correction, within a period of one week from today upon deposit of requisite charges, if any required.

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10) Rule is made absolute in the above terms. No order as to costs.

JUDGE JUDGE

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