Obviously, large number of people are running from pillar to post due to the red tapes in correction of Date of Birth in their registers. There are number of instances which the date of birth entered in the birth register may be wrong, even them people pursue with it due to the difficulty in correcting the same.
The Division Bench of Kerala High Court held that, the circulars issued by the Government cannot deny the right to correct the wrong entries in the birth register --- full text of Judgment-
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Coram : S. R. Bannurmath, C. J. ; *Kurian Joseph, J. ( Kerala High Court )
Date : 09/11/2009
CaseNo. : W. A. No. 1483 of 2009
Party : Chalakkudy Municipality and Another v. Minor Malavika and
Another.
JUDGMENT
The Judgment of the Court was delivered by Kurian Joseph, J.
1. Law is for man and not man for law. The simple difference between man
and machine is that machine follows the letter of law but man applies the spirit
of law. Once this principle is properly understood, it is not difficult to
understand, interpret or apply any law in a given situation. While analysing the
facts of this case and the legal issues involved in the same we find the above
mentioned principle would serve as a guiding spirit in deciding the case.
2. The Registration of Births and Deaths Act, 1969 came into force in Kerala
with effect from 01/04/1970. The Act is intended to provide for the regulation
of registration of births and deaths and for matters connected therewith. S.14
provides for the registration of the name of a child on birth and S.15 provides
for correction or cancellation of entry in the register of births and deaths. The
Kerala Registration of Births and Deaths Rules, 1999 came into force on
01/01/2000. The said Rules have been framed in exercise of the powers
under S.30 of the Act. S.30(l) empowers the State Government to frame Rules
providing for 'the correction of errors and the cancellation of entries in the
register of births and deaths'. R.10 provides for the procedure of registration
of births and R.11 provides for the correction or cancellation of entry in the
register of births and deaths.
3. For the purpose of easy reference the provisions are extracted below:
'S.14. Registration of name of child. -- Where the birth of any child has been
registered without a name, the parent or guardian of such child shall within the
prescribed period give information regarding the name of the child to the
Registrar either orally or in writing and thereupon the Registrar shall enter
such name in the register and initial and date the entry.
S.15. Correction or cancellation of entry in the register of births and deaths. --
If it is proved to the satisfaction of the Registrar that any entry of a birth or
death in any register kept by him under this Act is erroneous in form or
substance, or has been fraudulently or improperly made, he may, subject to
such rules as may be made by the State Government with respect to the
conditions on which and the circumstances in which such entries may be
corrected or cancelled, correct the error or cancel the entry by suitable entry
in the margin, without any alteration of the original entry, and shall sign the
marginal entry and add thereto the date of the correction or cancellation.
R.10. Period for the purpose of S.14. -- (1) Where the birth of any child had
been registered without a name, the parent or guardian of such child shall,
within 12 months from the date of registration of the birth of child, give
information regarding the name of the child to the Registrar in writing:
Provided that if the information is given after the aforesaid period of 12
months which shall be reckoned, subject to the provisions of sub-section (4)
of S.23, the Registrar shall enter the name in the relevant column of the
concerned form in the birth register on payment of a late fee of rupees five.
(2) The parent or the guardian, as the case may be, shall also present to the
Registrar the copy of the extract given to him under S.12 or a certified extract
issued to him under S.17 and on such presentation the Registrar shall make
the necessary endorsement relating to the name of the child.
R.11. Correction or cancellation of entry in the register of births and deaths. --
(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 the Registrar
shall enquire into the matter and if he is satisfied that any such error has been
made, he shall correct the error (by correcting or cancelling the entry) as
provided in S.15 and shall send an extract of the entry showing the error and
how it has been corrected to the State Government or the officer specified by
it in this behalf.
(2) If any person asserts that any entry in the register of births and deaths is
erroneous in substance, the Registrar may correct the entry in the manner
prescribed under S.15 upon production by that person a declaration setting
forth the nature of the error and true facts of the case made by two credible
persons having knowledge of the facts of the case.
(3) Notwithstanding anything contained in sub-rule (1) and sub-rule (2) the
Registrar shall make report of any correction of the kind referred to therein
giving necessary details to the State Government or the officer specified in
this behalf.
(4) If it is proved to the satisfaction of the Registrar that any entry in the
register of births and deaths has been fraudulently or improperly made, he
shall make a report giving necessary details to the officer authorised by the
Chief Registrar by general or special order in this behalf under S.25 and on
hearing from him take necessary action in the matter.
(5) In every case in which an entry is corrected or cancelled under this rule,
intimation thereof should be sent to the permanent address of the person who
has given information under S.8 or S.9.'
The Chief Registrar of Births and Deaths (Kerala) has also issued various
circulars regarding the procedure to be followed in making the entries and
correction of the entries. In the circular dated 24/03/1997 it is made clear that
the name as such cannot be substituted. However, corrections if any, can be
made in case the Registrar is satisfied as to the genuineness of the error. Still
further it is stated in the circular that any correction in the name of the parents,
address, sex, religion, community, date of death, name of the deceased,
name of the husband, father etc. of the deceased, can be made, in case the
application is after five years, only with the permission of the Chief Registrar.
It is also stated in the circular that any correction in the substance and change
in name etc. can be done only with the prior permission of the Chief Registrar.
Yet another clarification in the circular is that the correction shall be made only
in the margin of the register and when certificates are issued, only the new
entries need be shown in the certificates. However, the certificates, if any,
issued prior to the corrections should be returned and cancelled.
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 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, 1969 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. S.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. R.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 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 S.15 of the Act. In such
circumstances it is for the Registrar concerned to intimate the Government
and all concerned and also, if required, to take further action under S.25 for
prosecution in case the mistaken entry was fraudulently or improperly made.
5. The circular of the Registrar dated 24/03/1997 stipulates that once the
corrections are made, before issuing the fresh certificate, all the certificates
issued earlier should be got back and cancelled. For the purpose of the
present case, it is also necessary to deal with the said aspect. The certificates
are issued for production before an authority or officer concerned. There
cannot also be two types of certificates with the person, one with the
erroneous entry and the other with the corrected entry. But in case the
certificate already issued has either been irrecoverably lost or cannot be
returned having been produced before any authority and that authority refuses
to return the same and if the Registrar is satisfied as to the inability of the
applicant in such circumstances to produce the certificates already issued
with the wrong entry, nothing prevents the Registrar to issue a fresh certificate
with the corrected entry indicating therein that all the certificates issued prior
to the correction with the wrong entries would stand cancelled. The circular
has insisted for the return of the old certificates only for the purpose of
cancellation. In case the same cannot be produced and if the Registrar is
satisfied that the same cannot be produced for justifiable reasons, some of
which are referred to above, the Registrar cannot refuse to issue a fresh
certificate, on that only ground. As far as the facts in the present case are
concerned, the appellant Municipality was approached by the writ petitioner
for correction of the name of the father of the petitioner in the register of births.
Petitioner's father's name is Sajeev Velappan Nair, but the entry in the register
is 'Sajeev N. Nair'. According to the Municipality, certificates had already been
issued noting the name of the father as Sajeev N. Nair and unless the
certificates are returned, a fresh certificate could not be issued. The learned
Single Judge, on being satisfied as to the inability of the writ petitioner to
produce the certificates already issued by the Municipality, directed to issue a
fresh certificate with the correction in the name of the father of the petitioner.
In view of what we have already stated above, we are in full agreement with
the view taken by the learned Single Judge, though for additional reasons
stated by us.
Therefore, we do not find any merit in the writ appeal. It is accordingly
dismissed.
