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Hetal D/O Shivrambhai Varkal And W/O … vs State Of Gujarat on 26 February, 2024

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Gujarat High Court

Hetal D/O Shivrambhai Varkal And W/O … vs State Of Gujarat on 26 February, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

NEUTRAL CITATION

C/SCA/21550/2023 ORDER DATED: 26/02/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 21550 of 2023

HETAL D/O SHIVRAMBHAI VARKAL AND W/O SANDEEP GADDE M/O
MINOR ROSHNI SANDEEPBHAI GADDE
Versus
STATE OF GUJARAT ANR.

Appearance:
MR AKSHAY R VYAS(11455) for the Petitioner(s) No. 1
MS RATNA VORA(2251) for the Petitioner(s) No. 1
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 2

CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 26/02/2024
ORAL ORDER

1. Draft amendment dated 26.2.2024 is placed on
record and the same is allowed. Amendment to be carried
out forthwith.

2. By way of present petition, the petitioner herein has
prayed for direction,directing the respondent to amend
and/ or correct the name of minor daughter of the
petitioner as “Avira Hetal Varkal” instead of “Roshni
Sandeepbhai Gadde” in the Birth Certificate of the minor
daughter of the petitioner and to issue fresh birth
certificate with correct name as prayed for, by quashing
and setting aside the communication dated 21.9.2023 by
the respondent authority, which is duly produced at page-
30, Annexure “G”.

3. Heard Ms. Ratna Vora, the learned advocate

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appearing for the petitioner, Ms. Dhwani Tripathi, the
learned AGP for respondent No.1 and Mr. Kaushal
Pandya Patel, the learned advocate appearing for the
respondent No.2 authority.

4. The petitioner states that the marriage of the
petitioner Hetal Shivrambhai Varkal solemnised with
Sandeep Buchhaiyabhai Gadde on 16.12.2007 and out of
the wedlock, child namely “Roshni” was born. Due to
some dispute and misunderstanding between the
petitioner and petitioner’s husband, the said marriage
came to be dissolved by judgment and decree dated
16.1.2020 passed in Family Suit No. 676 of 2019, which is
duly produced at page-11 (Annexure “A”).

4.1. The petitioner had preferred Civil Misc. Application
No. 182 of 2022 under
Sections 9 and 25 of the Guardian
and Wards Act, 1890 before the learned 12th Additional
District Judge, Surat, praying to appoint the petitioner as
sole-guardian of the minor daughter Roshni, being
natural mother and also with the prayer that the name of
the petitioner be entered in all the documents of minor
Roshni as mother, which was allowed by order dated
30.9.2022, a copy of the judgment and order dated
30.9.2022 is duly produced at page-19 (Annexure “B”).

5. The petitioner herein approached the respondent
authority by preferring application dated 5.6.2023, duly

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produced at page-28, requesting the respondent authority
to issue fresh birth certificate of the petitioner’s minor
daughter in the name of “Avira Hetal Varkal”. The
respondent authority declined to consider the application
dated 21.9.2023, duly produced at Page-30, on the
ground that the in the birth certificate of the minor
daughter, the present petitioner is already entered as
mother of the minor and therefore no order is required to
this effect.

6. Mr. Ratna Vora, the learned advocate appearing for
the petitioner submitted that application seeking change/
correction in the name of minor daughter of the
petitioner as “Avira Hetal Varkal” instead of “Roshni
Sandeepbhai Gadde” in the Birth Certificate of the minor
daughter of the petitioner ought to have been considered
and allowed by the competent authority under
Section 15
of the Registration of Birth and Death Act, 1969 and Rule
11 of the Rules, 2004.

6.1 Ms. Vora, the learned advocate submitted that the
petitioner made a notarised affidavit to change the name
of petitioner’s minor daughter as “Avira Hetal Varkal”

instead of “Roshni Sandeepbhai Gadde” and submitted
the same before the Government authority for publishing
the same in Government Gazette. The name of the
petitioner’s minor daughter as “Avira Hetal Varkal” was
given effect in the Government Gazette dated 16.2.2023,

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which is duly produced at Page-25, wherein at Sr. No.
451, the said change is given effect and the petitioner’s
minor daughter’s name is changed from” Roshni
Sandeepbhai Gadde” to “Avira Hetal Varkal”.

6.2 Placing reliance on the aforesaid submissions, it
was submitted that taking into consideration the said
Government Gazetter duly produced at Page-27 wherein
the name of the petitioner’s minor daughter is effected as
“Avira Hetal Varkal” instead of “Roshni Sandeepbhai
Gadde” and considering the decree passed by teh
competent Court, duly produced at page-11 in Family Suit
No. 676 of 2019, the order impugned is required to be
quashed and set-aside and respondent authority be
directed to correct/ change the name of the daughter of
the petitioner in the birth certificate, as prayed for.

7. Mr. Kaushal Pandya, the learned advocate appearing
for the respondent is not in a position to controvert the
submissions made by the learned advocate appearing for
the petitioner.

8. Having heard the learned advocates appearing for
the respective parties, considering the impugned order
passed by the respondent No.2, the provisions of
Section
7(1) of the Act provides for appointment of Registrar for
exercise of the power, which are conferred to the
Registrar under
Section 15 of the Act. The aforesaid issue

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was considered in SCA No. 5793 of 2022 wherein it was
held that It is apposite to refer to Paras-7,8, 9 and 10 of
the said order, which read thus:

“7. 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 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/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

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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

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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.”

7.1 Thus, the Coordinate Bench has held that while
exercising powers under
section 15 of the 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.

8. 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.

(b) The Registrar appointed under the provisions of the

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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.”

8.1 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.

9. So far as the contention with regard to provision of Section
7(1) of the Act is concerned, in is noticed that the provision
of
Section 7(1) of the Act provides the appointment of the
registrar for exercise of the power, which are conferred to
the registrar under
Section 15 of the Act, which is already
interpreted by this Court in catena of judgements.

10. Hence, impugned communication/order dated 15.02.2022
passed by the respondent authority is hereby quashed and
set aside. The respondents are directed to issue fresh birth
certificate to the petitioners correcting the name of their son
from “Dev” to “Ved”. Such certificate shall be issue within a

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period of 6 (six) weeks from the date of receipt of writ of
order of this Court.”

9. Considering the facts of the present case and the
submissions advanced by the learned advocate appearing
for the respective parties and the ratio as laid down by
order dated 13.7.2022 passed in SCA No. 5793/2022, the
prayers as prayed for by the petitioner, require to be
allowed and the same are allowed.

10. The order dated 21.9.2023 passed by the respondent
authority duly produced at Page-30 is quashed and set
aside. The respondent authority is directed to issue fresh
birth certificate of the petitioner’s minor daughter, as
prayed for by the petitioner herein, giving effect to the
name of the petitioner’s minor daughter as “Avira Hetal
Varkal”, taking into consideration the Gazette Notification
dated dated 16.2.2023 duly produced at page-25 and the
decree passed by the competent Court, duly produced at
page-11 (Annexure “A”), within a period of one week from
the receipt of this Order, taking into consideration
Section 15 of the Act and Rule 11 of the Gujarat
Registration of Births and Deaths Rules, 2004 and the
position of law, as referred above.

The petition stands allowed to the aforesaid extent.

(VAIBHAVI D. NANAVATI,J)
SAJ GEORGE

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