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.
