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Judgment
( A.S. OKA, J.)
Yesterday, the parties were put to notice that the petition will be heard finally at the stage of admission.
The Petitioner, who claims to be unmarried, delivered a female child on 7th November 2014. The Petitioner in this petition under Article 226 of the
Constitution of India is praying for issuing a writ of mandamus directing the first Respondent â€" Mumbai Municipal Corporation to issue a birth
certificate of the child without incorporating the name of the natural father of the child. This prayer is based on the decision of the Apex Court dated
6th July, 2015 in ABC ÂVs The State (NCT of Delhi)1 . We may note that under the last order dated 13th February 2018, we had directed that the
names of the Petitioner and the added Respondent shall be masked in the orders of this Court and they shall be described as ABC and XYZ
respectively.
According to the averments made in the petition, on 20th August 2015, the Advocate for the Petitioner served a notice to the Commissioner of the
First RespondentÂMumbai Municipal Corporation. Along with the notice, he forwarded a copy of the decision of the Apex Court in the case of ABC
(Supra). By the said legal notice, the Petitioner contended that the hospital record wrongly mentions that she was married and an affidavit of the
Petitioner affirmed before a Notary Public on 20th August 2015 was forwarded to the First Respondent Mumbai Municipal Corporation in which the
Petitioner expressed a desire that the name of the father of the child should not be disclosed in the birth certificate. The letter dated 10th August 2016
ExhibitÂD to the petition, issued to the Petitioner by the Medical Officer of Health, shows that the request of the Petitioner was processed by the
Mumbai Municipal Corporation. However, by the said letter, the Petitioner was called upon to produce a copy of the order of Court requiring deletion
of the name of the father from the original birth certificate.
1 Special Leave Petition (Civil) No.28367 of 2011
An affidavit in reply has been filed by Dr. Anita Inamdar, Medical Officer of Health, R/C Ward Office dated 20th July 2017. The stand taken is
that there is no power vesting in the Municipal Corporation to amend the entries in the Register of Births. Alongwith the said affidavit, the Medical
Officer produced a copy of the application made by the Petitioner on 2nd September 2015 as well as her affidavit dated 21st August 2015. Alongwith
the said affidavit, a copy of the record of Vibha Care Home (The Family Hospital) is also annexed which includes a form which bears the signature of
the Petitioner on 7th November 2014 as well as her thumb impression. It also bears the signature of the applicant's mother. The said document is at
Pages 84 and 85 which mentions all the particulars including the name of the father of the child and his occupation. A copy of Form No.1 prescribed
under Rule 5 of the Maharashtra Registration of Births and Deaths Rules, 2000 (for short “the said Rulesâ€) is also annexed to the affidavit. There
are two parts of Form No.1. First part on the left hand side contains the legal information to be added to the Birth Register. The second part on the
right hand side contains the Statistical Information to be detached and sent for statistical processing. As far as the left hand side is concerned, it bears
the signature of the Petitioner. The name of the father of the child is mentioned against the relevant clause therein. The lower part of the portion on
the left hand side is required to be filled in by the Registrar which bears the round seal of Vibha Care Home, Mumbai. Someone has signed below the
round seal. In the right hand side of the Form No.1, the father's education and occupation have been mentioned. It also mentions that the age of the
Petitioner at the time of marriage as 19 years. The copy of the form which is annexed on Page 86 shows that the same was required to be signed by
the person giving information. On the said portion on Page 86, there is a signature below the rubber stamp/round seal of the Vibha Care Home. A
specimen Form No.1 is also annexed at Page Nos. 87 and 88.
There is a rejoinder filed by the Petitioner. In the said rejoinder dated 31st July 2017, she contended that she had not disclosed the name of the
father of the child. She had not stated that she was married to the person who is shown as the father of the child. She has stated that she was not
aware as to who forwarded the report to the office of the Medical Officer of the first Respondent Corporation from the Hospital.
Perusal of the order dated 13th February 2018 will show that the contentions of the learned counsel appearing for the Petitioner have been noted in
paragraph 4 of the said order. The learned counsel for the Petitioner had contended that on the forms at Pages 84 and 85 as well as on Page 86, the
signatures of the Petitioner were taken and that the contents of the forms were filled in subsequently by somebody else. This contention has not been
pleaded in the affidavitÂinÂrejoinder. In any case, the said dispute cannot be agitated in writ jurisdiction.
For the sake of completion, we may note that yesterday, a copy of birth certificate of the child was tendered by the learned counsel appearing for
the first Respondent Mumbai Municipal Corporation. The same is marked as CÂ1. Considering the directions which we propose to issue in this
petition, we propose direct the Registry to place the said certificate in a sealed envelope which shall not be opened without the permission of this
Court.
Today, the learned counsel appearing for the Mumbai Municipal Corporation has tendered a compilation which is taken on record and marked as
CÂ2 (collectively). The last page of the compilation is a copy of Form No. 1 in respect of the same birth. The said form is completely different from
the Form at Page 86 of the affidavit in reply. The form in compilation CÂ2 on its left hand side portion bears a thumb impression near the signature of
the Petitioner. In the lower portion of the left hand side portion of the form, the round seal of Vibha Care Hospital (The Family Hospital) and the
signature below the same are missing. Form No.1 on Page 86 does not contain the signature of any person on the right side. However the Form No.1
in compilation CÂ2 bears a signature on the right hand side portion. We fail to understand as to how there could be two Form No.1 filled in respect of
the same birth.
Before we come to the main controversy, a reference to the relevant statutory provisions in the Registration of Births and Deaths Act, 1969 (in
short the 'said Act') will be necessary. The object of the said Act is to provide for the regulation of registration of births and deaths. Chapter II of the
said Act provided for creation of offices such as RegistrarÂGeneral, the Chief Registrar, District Registrar and Registrars. Section 8 of Chapter III of
the said Act is material which casts a duty on the persons specified in section 8 to register the births and deaths. Section 8 of the said Act reads thus:
“8. Person required to register births and deathsÂ(1) It shall be the duty of the persons specified below to give or cause to be given, either orally or
in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several
particulars required to be entered in the forms prescribed by the State Government under subÂsection (1) of section 16,Â
(a) in respect of births and deaths in a house, whether residential or nonÂresidential, not being any place referred to in clauses (b) to (e), the head of
the house or, in case more than one household live in the house, the head of the household, the head being the person, who is so recognized by the
house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the
nearest relative of the head present in the house, and in the absence of any such person,
the oldest adult male person present therein during the said period;
(b) in respect of births and deaths in a hospital, health centre, maternity or nursing home or other like institution, the medical officer in charge or any
person authorized by him in this behalf;
(c) in respect of births and deaths in a jail, the jailor in charge;
(d) in respect of births and deaths in a choultry, chattram, hostel, dharamshala, boardingÂhouse, lodgingÂhouse, tavern, barrack, toddy shop or place
of public resort, the person in charge thereof;
(e) in respect of any newÂborn child or dead body found deserted in a public place, the headman or other corresponding officer of the village in the
case of a village and the officer in charge of the local police station elsewhere:
Provided that any person who finds such child or dead body, or in whose charge such child or dead body may be placed, shall notify such fact to the
headman or officer aforesaid;
(f) in any other place, such person as may be prescribed.
(2) Notwithstanding anything contained in subÂsection (1), the State Government, having regard to the conditions obtaining in a registration division,
may by order require that for such period as may be specified in the order, any person specified by the State Government by designation in this behalf,
shall give or cause to be given information regarding births and deaths in a house referred to in clause (a) of sub section (1) instead of the persons
specified in that clauseâ€
In the present case, the birth of the child has admittedly taken place in a hospital. Therefore, as per clause (b) of subÂSection(1) of Section 8 of the
said Act, the duty of giving information about the birth in this case was of the Medical Officer incharge of the hospital or any person authorised by him
in this behalf.
Section 10 of the said Act is also relevant as far as duty to notify the birth is concerned. Section 10 read thus:Â
“10. Duty of certain persons to notify births and deaths and to certify cause of death. (1) It shall be the duty ofÂ
(i) the midwife or any other medical or health attendant at a birth or a death,
(ii) the keeper or the owner of a place set apart for the disposal of dead bodies or any person required by a local authority to be present at such place,
or
(iii) any other person whom the State Government may specify in this behalf by his designation, to notify every birth or death or both at which he or
she attended or was present, 'or which occurred in such areas as may be prescribed, to the Registrar within such time and in such manner as may be
prescribed.
(2) In any area, the State Government, having regard to the facilities available therein in this behalf, may require that a certificate as to the cause of
death shall be obtained by the Registrar from such person and in such form as may be prescribed.
(3) Where the State Government has required under sub section (2) that a certificate as to the cause of death shall be obtained, in the event of the
death of any person who, during his last illness, was attended by a medical practitioner, the medical practitioner shall, after the death of that person,
forthwith, issue without charging any fee, to the person required under this Act to give information concerning the death, a certificate in the prescribed
form stating to the best of his knowledge and belief the cause of death; and the certificate shall be received and delivered by such person to the
Registrar at the time of giving information concerning the death as required by this Act.â€
Nothing is placed on record to show that the State Government has exercised the powers under clause (iii) of subÂsection (1) of Section 10 of the
said Act for specifying any other person. Section 12 of the said Act provides that the Registrar shall provide the person, who gives information under
Section 8 or Section 9, an extract of the prescribed particulars under his hand from the register relating to such birth or death.
The said Rules of 2000 have been framed by the Government of Maharashtra in exercise of powers under Section 30 of the said Act. Rule 5
which is relevant for our purpose reads thus:Â
“5. Forms, etc. for giving information of births and deaths under section 8 and 9:Â
(1) The information required to be given to the Register under section 8 or section 9, as the case may be, shall be in Form Nos. 1, 2 and 3 for the
registration of a live birth, death and still birth respectively, (hereinafter to be collectively called the reporting forms). Information if given orally, shall
be entered by the Registrar in the appropriate Forms and the signature/thumb impression of the informant be obtained thereunder.
(2) The part of the said Forms containing legal information shall be called the “Legal Part†and the part containing statistical information shall be
called the “Statistical Partâ€.
(3) The information referred to in subÂrule (1) shall be given within twenty one days from the date of live birth, death and still birth.â€
In this case, we are concerned with the live birth and, therefore, the relevant form is Form No.1. The Form at Page 86 is in Form No.1. The perusal
of the Form No.1 shows that certain portion is to be filled in by the informant and certain portion is to be filled in and signed by the Registrar. It is
obvious that the informant is the person who informs about the live birth of a child. SubÂrule (2) of Rule 5 itself provides that there are two parts of
the form. The first is “Legal Part†which is on left hand side and the second is “Statistical Part†which is on right hand side. Rule 12 provides
that the Legal Part of Form Nos. 1, 2 and 3 shall constitute the birth register, death register and still birth register.
As noted earlier, Section 12 provides for extract of registration entries to be given to the informant. Rule 8 deals with the extracts of registration
entries. The birth certificate is in Form No.5.
There is one more provision of the said Act, which is relevant. It is Section 15 of the said Act which read thus:
“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 thereÂto the date of the correction or cancellation.†(underline supplied)
Therefore a limited power has been conferred on the Registrar of correction or cancellation of entries in the Register of Births and Deaths. A
correction can be made provided that the Registrar is satisfied that any entry of birth or death in any register kept by him under the said Act is
erroneous in form or substance, or has been fraudulently or improperly made. In such cases, he may subject to rules as may made by the State
Government, correct the error or cancel the entry as provided in Section 15 of the said Act. Rule 11 of the said Rules lays down the procedure. Thus,
it appears that the power to correct or cancel an entry in the Register of Birth and Deaths is confined to the limited cases mentioned above.
In the present case, the entry of the name of the biological father has been made in Legal Part of Form No.1 as prescribed by Rule
The entry regarding status of the Petitioner is “marriedâ€. The entry regarding education and occupation of the father is in the Statistical part of
Form No.1 The Legal Part of Form No.1 is itself a Registrar births as provided in Rule 12 of the said Rules. Hence, the name of the biological father
of the child appears in the Register of Births. That is how the entry of the name of the biological father of the child appears in the birth certificate
issued in Form 5 of the said Rules.
As far as the submissions are concerned, the same have already been referred in the order dated 13th February 2018. The case made out by the
Petitioner is that she has signed a blank Form No.1 which was filled in by somebody else. This question cannot be gone into in this petition under
Article 226 of the Constitution of India. Adjudication on this question requires recording of evidence. Similarly, her contention is that her signature was
taken on the document at Pages 84 and 85 and the details were filled in by somebody else. This contention cannot be gone into in writ jurisdiction for
the same reason. The Form on pages 84 and 85 contains a column regarding age of the mother of the child. That column is filled in showing the age of
the Petitioner as 19 years. The other contention that the Petitioner never married to the person shown as the biological father of the child cannot be
gone into writ jurisdiction inasmuch as, the appropriate and efficacious remedy available to the Petitioner is to approach Civil Court and seek a proper
declaration.
Now, the only contention which is required to be decided is whether the name of the biological father of the child already entered in the Register
of Births, can be deleted. In this behalf, reliance was placed on the aforesaid decision of Apex Court in the case of ABC (supra). We may note here
that the case before the Apex Court arose out of the proceedings regarding the guardianship of a child. The detailed discussion about the controversy
involved in the matter is in the context of issue of guardianship. The paragraphs 12 and 13 of the said judgment read thus:Â
We recognize that the father's right to be involved in his child's life may be taken away if Section 11 is read in such a manner that he is not given
notice, but given his lack of involvement in the child's life, we find no reason to prioritize his rights over those of the mother or her child. Additionally,
given that the Appellant has already issued notice to the public in general by way of a publication in a National Daily and has submitted an affidavit
stating that her guardianship rights may be revoked, altered or amended if at any point the father of the child objects to them, the rights, nay duty of
the father have been more than adequately protected.
The issue at hand is the interpretation of Section 11 of the Act. As the intention of the Act is to protect the welfare of the child, the applicability of
Section 11 would have to be read accordingly. In Laxmi Kant Pandey vs. Union of India 1985 (Supp) SCC 701, this Court prohibited notice of
guardianship applications from being issued to the biological parents of a child in order to prevent them from tracing the adoptive parents and the child.
Although the Guardians and Wards Act was not directly attracted in that case, nevertheless it is important as it reiterates that the welfare of the child
takes priority above all else, including the rights of the parents. In the present case we do not find any indication that the welfare of the child would be
undermined if the Appellant is not compelled to disclose the identify of the father, or that Court notice is mandatory in the child's interest. On the
contrary, we find that this may well protect the child from social stigma and needless controversy.
The Apex Court, in the said decision, has observed that the child has a right to know the identity of his parents. The material observations in this
behalf are in paragraph 18 of the said decision, which read thus:Â
“18. In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption
of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions
of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a
vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdiction across the globe. We are
mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the
competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of
our parents partria obligations, and in that regard we need to ensure that the child's right to know the identity of his parents is not vitiated, undermined,
compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to
disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further
information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this
Court.â€
The Apex Court has specifically observed in paragraph 18 that a child has right to know the identity of his parents. This right should not be vitiated,
undermined, compromised or jeopardised. Paragraph 19 regarding the birth certificate reads thus:Â
We are greatly perturbed by the fact that the Appellant has not obtained a Birth Certificate for her son who is nearly five years old. This is bound
to create problems for the child in the future. In this regard, the Appellant has not sought any relief either before us or before any of the Courts below.
It is a misplaced assumption in the law as it is presently perceived that the issuance of a Birth Certificate would be a logical corollary to the Appellant
succeeding in her guardianship petition. It may be recalled that owing to curial flat, it is no longer necessary to state the name of the father in
applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both these cases, it may still
remain necessary to furnish a Birth Certificate. The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and
enigmas it presents. There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed
mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an
affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary. Trite though it is, yet we
emphasise that it is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage merely because the parents fail
or neglect to register the birth. Nay, it is the duty of the State to take requisite steps for recording every birth of every citizen. To remove any possible
doubt, the direction pertaining to issuance of Birth Certificate is intendedly not restricted to the circumstances or the parties before usâ€. (underline
supplied)
The direction of the Apex Court is that if a Single parent / unwed mother applies for issuance of a Birth Certificate of a child born from her womb, the
Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate accordingly, unless
there is a Court direction to the contrary. There is a direction that if such affidavit is made by a single parent or unmarried mother, a birth certificate
will be issued which will not contain the name of the father of the child. Relying upon this judgment that the Petitioner made an application to the
Municipal Corporation and issued a notice through her advocate.
We may note here that the Apex Court in the aforesaid decision had no occasion to address itself to the vital question about the deletion of the
entry of the name of the father of the child in the Birth Register required to be maintained under the provisions of the said Act and the said Rules.
The said Rules prescribe a form for giving information relating to birth. It is the Form No.1 under Rule 5 contains two parts namely, “Legal
Part†and “Statistical Partâ€. Legal Part requires the person giving information to disclose the name of the father, the name of the mother, house
address, date and place of birth, the name of the child etc. It also provides for mentioning the name of the Informant. Therefore, as per Form No.1
read with Rule 5, the information regarding the name of the father has to be incorporated. As stated earlier, the legal information provided in Form
No.1 constitutes a Register of Births as required to be maintained under Section 16 of the said Act.
20.Neither the provisions of the said Act nor the provisions of the said Rules are subject matter of challenge in this petition. All the information as
required by Form No.1 has to be filled in including the Legal Information which contains the name of the father. Therefore, if the name of the father
of a child is known, the said information has to be included in the Legal Information in Form No.1. As far as the power of correction or cancellation of
entry in the register of births and deaths is concerned, the same is a limited power under Section 15 read with Rule 11 of the said Rules. In the facts
of this case, we cannot record a finding of fact that the entry of the name of the father is erroneous in form or substance, or has been fraudulently or
improperly made. In the present case, the Petitioner has not stated that the person who is shown as the father of the child is not the father of the child.
She has not disputed that the said person is the father of the child. She has specifically disputed the correctness of the statement that she has married
to him. This controversy about the alleged marriage can be decided only by a Civil Court. Therefore, in writ jurisdiction under Article 226 of the
Constitution of India, this Court cannot order deletion of the entry of the name of the father made in Form No.1 and consequently in the Register of
Births.
Now coming back to the relief sought, we may note here that the third respondent (XYZ) whose name is shown as the biological father of the
child has appeared through an advocate. He was personally present yesterday when his advocate tendered an affidavit dated 12th March 2018. He
has stated therein that he has no objection for deleting his name from the record of the girl child including the records of the Mumbai Municipal
Corporation. However, he has not stated anything about the factual controversy namely whether he has married to the Petitioner or whether he is the
biological father of the child. Only on the basis of his consent, this Court cannot order deletion of his name from the Register of births as the case does
not fall under section 15 of the said Act.
In terms of the decision of the Apex Court, there is an affidavit filed by the Petitioner, wherein she has stated that she does not want birth
certificate of the child to contain the name of the father of the child. As observed earlier, the Apex Court has accepted the right of the child to know
particulars of his parent. In this case, for the reasons recorded earlier, the entries made in the Form No.1 and in the Register will remain on the
record. However, as per the direction issued by the Apex Court, an order will have to be made directing the Mumbai Municipal Corporation not to
show the name of the father of the child while issuing an extract of birth or birth certificate in Form No.5 provided in the said Rules. That is the reason
why we have directed that birth certificate of the child placed on record and marked as CÂ1 shall be kept in a sealed envelope.
There is one more factual aspect of the matter which calls for an inquiry. We have extensively referred to the document on Page 86 of the
petition, which is Form No.1. We have referred to another Form No. 1 in respect of birth of the same child which is on the last page of the compilation
tendered on record by the Municipal Corporation and marked CÂ2 for identification. We have also noted that the two different Forms are in respect
of the birth of the same child. Thus, two Forms in respect of the birth of the same child are available on the record of the Mumbai Municipal
Corporation. Prima facie, it appears to us that two forms could not be filled in respect of the same birth. In our view, maintaining the two different
Forms which are in respect of the birth of same child may not be in terms of the said Act and the said Rules. There can be a possibility that more than
one form are filled in by different informants. But in this case, both the forms bear the signatures of the Petitioner as the informant. We, therefore,
propose to direct the Municipal Commissioner to appoint an Officer to hold an inquiry on this aspect. Instructions will have to be issued to ensure that
the provisions of the said Act and the said Rules are scrupulously followed.
Hence, we dispose of the petition by passing the following
O R D E R
(i) As far as the contention of the Petitioner that the details in the forms Pages 84, 85 and 86 of the petition were filled in by somebody else is
concerned, we make it clear that the said issue is kept open which will have to be decided by a competent Civil Court. Similarly, the contention of the
Petitioner that she has not married to the person shown as the biological father of the child in Form No.1 cannot be decided in writ jurisdiction and the
Petitioner will have to adopt a remedy before the Civil Court;
(ii) The Birth certificate taken on record and marked CÂ1 for identification shall be kept in a sealed envelop and shall not be opened without prior
permission of the Court;
(iii) We direct Mumbai Municipal Corporation that whenever a copy of the birth certificate of the said child is issued in Form No.5 of the said Rules,
the name of the father of the child shall not be incorporated and the same shall be kept blank. If the Mumbai Municipal Corporation has already issued
birth certificates and if record of the persons to whom the birth certificates have been issued is available, the Mumbai Municipal Corporation shall
recall the said certificates by addressing necessary communications to the concerned persons and issue fresh birth certificates as directed above;
(iv) As observed earlier in paragraph 23 above, an inquiry is called for as to how there are two Form No.1 on record signed by the Petitioner as the
informant. We direct Commissioner of Mumbai Municipal Corporation to appoint any Senior Officer of the Mumbai Municipal Corporation to hold an
inquiry into this aspect as the Legal Part of both the Forms bears the signatures of the Petitioner as the informant. The officer will look into the
circumstances in which two forms by the same informant have been taken on record;
(v) The Commissioner of Mumbai Municipal Corporation shall direct the officer nominated by him to look into all aspects and submit a report within
two months from the date on which this judgment and order uploaded. If there are any procedural lapses, the Commissioner of Mumbai Municipal
Corporation shall issue necessary directions for correcting the lapses so that the provisions of the Registration of Births and Deaths Act, 1969 and
Maharashtra Registration of Births and Deaths Rules, 2000 are scrupulously followed;
(vi) The petition is disposed of with the above directions.