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Madras High Court
Mirunadevi vs The Commissioner on 27 February, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.12.2023
Pronounced on : 27.02.2024
CORAM
THE HON’BLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)No.30055 of 2023
Mirunadevi … Petitioner
vs.
1.The Commissioner,
Madurai Corporation, Madurai.
2.The Registrar of Births and Deaths,
Madurai Corporation, Madurai. … Respondents
For Petitioner : Mr.T.Antony Arulraj
For Respondents : Mr.K.K.Kannan
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ORDER
The petitioner got married to one A.Nallusamy on 10.10.2014. A female
child, by name, Yogavarthini was born on 07.01.2016 through the said
wedlock. The marital relationship between the petitioner and the said
Nallusamy came under strain. The petitioner filed O.S No.664 of 2021 on the
file of the Family Court, Madurai for dissolving her marriage on the ground of
desertion. The Family Court granted decree as prayed for on 05.01.2023.
Thereafter, she got married to one Kalidass. The said Kalidass was also a
divorcee. The marital relationship between Kalidass and his wife was dissolved
through mutual consent vide order dated 11.10.2022 in HMOP No.128 of 2022
on the file of the Family Court, Ramanathapuram.
2.The marriage between the petitioner and Kalidass took place on
21.08.2023 as per Hindu rites and customs at Thirupparankundram. The
question that arises for consideration is whether the first respondent should
be directed to make changes in Yogavarthini’s birth certificate by mentioning
the name of Kalidass in the father’s column. The petitioner gave
representation in this regard. Since it was not acted upon, the present writ
petition came to be filed.
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3.The learned counsel for the petitioner reiterated all the contentions
set out in the affidavit filed in support of the writ petition and sought relief as
prayed for. The learned standing counsel for the Madurai Corporation
submitted that relief cannot be granted. He pointed out that the petitioner
had not impleaded the biological father of Yogavarthini in this writ petition and
that if revision as sought for by the petitioner is granted, it will have a bearing
on his rights. He also added that there is no provision for making changes as
sought for. The learned standing counsel placed reliance on the order dated
20.07.2020 made in OP No.103 of 2020 by the Madras High Court and the
order dated 04.05.2016 made in CWP No.3560 of 2016 (OM) by the High
Court of Punjab and Haryana at Chandigarh in support of his contention that
the name of the stepfather cannot be entered in the birth certificate replacing
the name of the biological father. He pressed for dismissal of this writ
petition.
4.I carefully considered the rival contentions and went through the
materials on record. Question arose if in the passport of a minor, instead of
biological father’s name, stepfather’s name can be incorporated. Vide order
dated 22.11.2023 made in WP(MD)No.26265 of 2023, I had held as follows :
“2.The petitioner was born to Mr.Ashwin and J.Sivabackiya
on 12.11.2019. The petitioner’s father died in a tragic road
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accident on 26.04.2022. The petitioner’s mother got remarried and
she is presently abroad. The petitioner had also suffered multiple
injuries during the accident. She is also having quite a few other
medical issues. The petitioner is presently with her mother and
the stepfather. Certain issues had arisen on account of the
presence of the petitioner’s biological father’s name in the
passport. The petitioner wants her stepfather’s name to be
included in the column “father” in the place of her biological
father. Since her application has not been considered, this writ
petition came to be filed.
3.The issue raised in this writ petition is no longer res
integra. A learned Judge of this Court Mr.Justice
V.Ramasubramanian (As His Lordship Then Was) in the decision
reported in 2015-1-L.W-943 (Mrs.B.S.Deepa vs. The Regional
Passport Officer, Chennai ors) held as follows :
“38.In view of the above, the writ petition is disposed of with the
following directions:-
(1) The Ministry of External Affairs, Union of India may
incorporate suitable provisions in the Passport Manual and
incorporate suitable columns in the applications for the issue of
passports, to enable the parties to indicate either the names of the
biological parents or the names of the adoptive parents or the
names of the step parents or all of them, according as the situation
demands. It can be left to the will of the parties either to indicate
the names of one or more of the biological parents along with the
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name/ names of the adoptive or step parent/parents or to indicate
the names of all.
(2) In so far as the case on hand is concerned, the respondents
shall issue a passport to the daughter of the petitioner, by
indicating the name of R.Lakshmanan as the stepfather, in the
column reserved for filling up the name of the father. The
respondents are directed to issue passport within four weeks, upon
the petitioner’s application bearing File No. MA3067806994714
dated 10.7.2014.”
This judgment was followed in a subsequent decision of this Court
reported in (2016) 7 Mad LJ 605 (J.Nijish Archibald v. The
Regional Passport Officer). I am inclined to adopt the very same
approach. The respondent is directed to re-issue the
passport to the petitioner by substituting the name of her
stepfather J.Praveen in the place of her biological father Ashwin K
as expeditiously as possible. ”
5.The present case involves substitution of the name of the biological
father by the stepfather. The issue ought not to be approached from a
technical angle. I make it clear that the deletion of the name of the biological
father in the birth certificate will not in any way take away the rights of the
child in the estate of the biological father. This clarification ought to address
the concerns expressed by the learned standing counsel for the Madurai
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Corporation. The rights of the biological father can never be taken away,
provided he is ready to discharge his obligations as a parent. It is true that a
decree of divorce severs the matrimonial relationship between the husband
and wife and that it will not sever the relationship between the parents and
the child. In this case, the petitioner obtained decree of divorce on the
ground of her husband’s desertion. The petitioner had succeeded in
establishing the ground based on Section 13(1)(i-b) of the Hindu Marriage
Act, 1955. The biological father of the child Nallusamy is nowhere in the
scene. The child is now aged about seven years. It is the petitioner who is
taking care of the child. The biological father has not contributed a single pie
towards the well being of the child. There is a well known maxim “one who
seeks equity must do equity”. The biological father can exercise his rights
vis-a-vis the child, only if he is discharging his corresponding obligations.
6.The Hon’ble Supreme Court in the decision reported in (2010) 1 SCC
174 (V.Ravi chandran v. Union of India) held that whenever a question
arises before a court pertaining to the custody of a minor child, matter is to be
decided not on considerations of the legal rights of the parties but on the sole
and predominant criterion of what would best serve the interest of the minor.
I would apply the said principle not only in child custody cases but also in any
matter pertaining to interests of children.
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7.Before me a case arose whether the father can give his child in
adoption without getting the consent of his wife. Vide order dated
26.02.2024 in WP(MD)No.1353 of 2024, I held as follows :
“7.The petitioner is the biological father of Mathesh. Since his
wife had already abandoned the child, the question of obtaining her
consent will not arise at all. Section 9(1) and (2) of the Hindu
Adoptions and Maintenance Act, 1956 reads as follows :
“9.Persons capable of giving in adoption.-(1)No person except
the father or mother or the guardian of a child shall have the capacity
to give the child in adoption.
(2) Subject to the provisions of sub-section (4), the father or the
mother, if alive, shall have equal right to give a son or daughter in
adoption:
Provided that such right shall not be exercised by either of them save
with the consent of the other unless one of them has completely and
finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind.”
In Githa Hariharan vs. RBI (1999) 2 SCC 228, the expression “after”
occurring in Section 6(a) of Hindu Minority and Guardianship Act,
1956 was interpreted not as “after the lifetime” but as “in the absence
of”, the word “absence” referring to the father’s absence from the care
of the minor’s property or person for any reason for whatsoever. If the
father is wholly indifferent to the matters of the minor, or he is staying
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away completely, he can be considered to be absent and the mother
being a recognized natural guardian can act validly on behalf of the
minor as the guardian. This judgment was followed in ABC vs. State
(2015) 10 SCC 1. The same approach can be adopted while applying
Section 9 of the Hindu Adoptions and Maintenance Act, 1956. The
father as guardian of the child has the capacity to give the child in
adoption. He must however take the consent of his wife if she is alive.
When the wife has abandoned the child and her whereabouts are not
known, the said requirement can be dispensed with. Of course, such
dispensing with cannot be lightly made. The facts must justify and
only with the prior leave of the court, it can be done.”
After carefully going through the averments made by the petitioner in the
affidavit filed in support of the writ petition, I am persuaded to accept the
same.
8.The issue has to be approached from the perspective of the child. The
child is treating Thiru.A.Kalidass as her father and vice versa. In the school
register, the child bears the initial “N”. The learned counsel for the petitioner
during the course of hearing informed me that this is having a grave
psychological impact on the child’s health. The child is said to be asking why
she is not having the initial “K”. It is well settled that when it comes to the
affairs of a child, its interest will rank paramount. Courts will not apply
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technical considerations laid down in the statutes. Courts will be guided by
considerations of what is best in the interest of the child.
9.I, therefore, direct the respondents to make the correction sought for.
The respondents will issue revised birth certificate by substituting the name of
Thiru.A.Kalidass in the place of “Nallusamy” in the column “name of the
father”. Such certificate will be issued immediately and without any delay.
The revised certificate will bear the name of Thiru.A.Kalidass alone as the
father of the child and the name of Thiru.Nallusamy will not be mentioned in
the certificate to be issued.
10.This writ petition is allowed. No costs.
27.02.2024
Index : Yes/No
Internet : Yes/No
skm
To
1.The Commissioner, Madurai Corporation, Madurai.
2.The Registrar of Births and Deaths, Madurai Corporation, Madurai.
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G.R.SWAMINATHAN, J.
skm
WP(MD)No.30055 of 2023
27.02.2024
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