Tuesday, 30 March 2021

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

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.

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.

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.

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.

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.

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

JUDGE JUDGE


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