IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon’ble Justice Amrita Sinha
WPA 88 of 2023
Arpita Chowdhury
v.
Nabadwip Municipality & Anr.
For the writ petitioner :- Mr. Jayanta Samanta, Adv.
Ms. Karunamoyee Samanta, Adv.
Mr. Rajdeep Adhikary, Adv.
For the Nabadwip Municipality:- Mr. Swapan Kumar Majumdar, Adv.
Mr. Saptarshi Majumdar, Adv.
For the respondent no. 4 :- Mr. Dip Jyoti Chakraborty, Adv.
For the respondent no. 3 :- Md. Sarwar Jahan, Adv.
Ms. Tapati Sarkar, Adv.
Heard on :- 29.02.2024
Judgment on :- 29.02.2024
Amrita Sinha, J.:-
The petitioner is the mother of a minor child. The child was born out of
the earlier wedlock of the petitioner which stood dissolved by order passed by
the competent Court on January 28, 2021. The petitioner has thereafter
remarried and has moved on to her marital house with her child. The present
husband of the petitioner has accepted the child of the petitioner as his own
and the child has all along known him as father.
The petitioner intends to replace the name of her erstwhile husband and
surname of the child recorded in her child’s birth certificate and other
documents by incorporating the surname and name of her present husband as
the father of her minor child.
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The biological father of the child, in no uncertain terms, has given his
consent to the prayers made by the petitioner. It has been submitted that both
the parties to the erstwhile marriage have moved on in their respective lives.
Neither the biological nor the step father has any objection if the above changes
are recorded in the birth certificate of the child.
The Municipality is not permitting the same. The Municipality relies
upon Section 15 of the Registration of Births and Deaths Act, 1969 and upon
the guidelines issued by the Government of India, Ministry of Home Affairs
dated December 29, 2014 which mention that once the name of the child is
entered in the birth certificate, it cannot be changed.
In support of the prayer made in the writ petition, the parties rely upon
the order passed by the Hon’ble Supreme Court in the matter of ABC v. State
(NCT of Delhi) reported in (2015) 10 SCC 1 paragraph 28.
Reliance has also been placed on a judgment delivered by the Madurai
Bench of the Madras High Court on February 27, 2024 in WP(MD) No. 30055 of
2023 (Mirunadevi v. The Commissioner, Madurai Corporation, Madurai &
Anr.) paragraph 8.
What is to be decided is whether there is absolute bar to change the
entries of the register maintained for recording births and deaths?
I have heard and have given my thoughtful consideration to the
submissions made on behalf of all the parties and have perused the materials
placed before this Court.
It appears that the child is presently remaining with the petitioner who is
her mother and with the step father. The child is of very tender age and is yet
to understand the difference or the concept of a biological father and a step
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father. The child has all along known and accepted the present husband of the
petitioner as father.
Birth certificate of an individual is a very important document in life. The
same is an evidence of one’s birth and lineage. It also acts as a proof of one’s
age, identity and citizenship. Various uncomfortable questions may arise in
one’s mind when the individual becomes mature and notices that the name of
a different person is recorded as his/her father. The same may lead to further
complications in future and may also result in breakdown of relationships.
The previous marriage of the petitioner stood legally dissolved and the
child has been gracefully and unconditionally accepted by the present husband
of the petitioner. Though the law relied upon by the Municipality imposes a bar
to change of entries in the birth certificate but it cannot be lost sight of the fact
that the same is a very archaic Act. When the said Act was conceptualized and
it came into effect, incidents of such nature was not anticipated. Stringent and
rigid provision of the Act highlights and signifies the importance of a birth
certificate. The document is taken as sacrosanct. The very identity of an
individual changes with alteration of the details mentioned therein.
True it is. At the same time one cannot deny the fact that with
advancement of time there has been a sea change in marital relationship of
parties. With awareness of law and financial independence many of the parties
are no longer interested to continue with unhappy and unworkable
relationship. They choose to dissolve the relationship and move on, however,
the baggage of the relationship may pose sticky problems and at time interferes
with the privacy of the parties. Law has to be dynamic and ought to evolve to
tackle such issues. One cannot be hyper technical while dealing with personal
issues with hardly any public law element involved.
There is a provision in the Act to correct or cancel entry in the register if
the same is found to be erroneous in form or subject. It is not that there is
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absolute total bar to rectify errors. With the change in circumstances, the entry
in respect of the father of the minor child has to be taken as improper and
liable to be rectified and the records are to be corrected. If the necessary
alteration is not done, then the child and her parents may have to face several
embarrassing situations in future. Every individual has the right to live with
dignity and honour.
It is noted that it is not always necessary to delete the details of the
biological parents from the birth certificate and it is alright if the parties agree
to retain the details mentioned therein, but if a request is made to effect
changes in the register, then such request is to be considered upon application
of mind depending upon the facts and circumstances of the case. Law cannot
be so rigid so as not to take within its fold the changing need of time. Law is to
be applied in the best interest of the parties.
The Hon’ble Supreme Court in the matter of ABC (supra) directed the
Municipality to issue birth certificate by incorporating the name of the present
husband of the petitioner as the father of the minor child and further directed
the surname of the minor child to be replaced with the surname of her present
father relying upon an affidavit to be sworn by the mother.
In the matter of Mirunadevi the Court directed the Corporation to issue
revised birth certificate by incorporating the name of the step father of the
child.
The petitioner herein has already affirmed an affidavit and filed the same
before the Municipality mentioning the changes that she intends to incorporate
in the birth certificate of the minor child. Keeping in mind the best interest of
the child and in line with the decisions mentioned herein above, the
Municipality is directed to issue fresh birth certificate in the name of the child
by incorporating the name and surname of the step father and incorporating
the surname of the step father as the surname of the child at the earliest, but
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positively within a period of two weeks from the date of communication of this
order.
It is made clear that with the deletion of the name and surname of the
biological father, the rights of the child to the property of the biological father
will not be extinguished and the same will remain intact for all times to come.
The writ petition stands disposed of.
Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties expeditiously on compliance of usual legal formalities.
(Amrita Sinha, J.)