AAA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was married to the 7th respondent on 26/5/2010. A son, who is arrayed as the 9th respondent, was born in their marriage on 7/3/2011. The child's birth was registered with the 2nd respondent - Municipality, and the petitioner and the 7th respondent were recorded as the child's parents. Post-delivery, the 7th respondent and the child went to the 7th respondent's parental home for recuperation. But, on 12/4/2011, both of them went missing. The 7th respondent's father lodged Ext.P2 FIR with the Payyannur Police. Simultaneously, the petitioner filed a writ petition before this Court, seeking a writ of habeas corpus. Shockingly, the 7th respondent appeared and stated that she desired to live with her lover, the 8th respondent. Recording her statement, by Ext.P2(a) judgment, this Court closed the writ petition. In view of the irretrievable breakdown of the marriage, the couple executed Ext.P3 agreement to live separately. Subsequently, by Ext.P4 judgment, their marriage was dissolved on mutual consent. Later, through Ext.P7 information received under the Right to Information Act, 2005, the petitioner learnt that, by Ext.P9 order passed by the 4th respondent Registrar of Births and Deaths of - the Municipality on Ext.P10 joint application submitted - by the respondents 7 and 8, the petitioner's name was substituted with that of the 8th respondent as the child's father in the Birth Register. The 4th respondent also carried out corresponding changes in the Birth Register and issued Ext.P16 birth report and consequently the 2nd respondent issued Ext.P17 birth certificate. The changes were effected without notice or hearing the petitioner. The 4th respondent has failed to adhere to the procedure laid down under Sec. 15 of the Registration of Births and Deaths Act, 1969, Rule 11 of the Kerala Registration of Births and Deaths Rules, 1999 and Ext.P19 Circular. The Municipality has also failed to comprehend the conclusive presumption under Sec. 112 of the Indian Evidence Act, 1872. Ext. P16 birth report and Ext.P17 birth certificate are arbitrary and illegal, and passed in flagrant violation of the principles of natural justice. Thus, they are liable to be quashed.

(2.) In the counter affidavit of the 2nd respondent, it is stated that a male child was born to the 7th respondent on 7/3/2011 at the 5th respondent hospital. At the time of registration of the child's birth, the petitioner's name was recorded as the child's father. However, on 10/12/2012, the respondents 7 and 8 submitted a joint application stating that the petitioner's name was erroneously recorded as the child's father instead of that of the 8th respondent. They submitted certificates from the 5th respondent Hospital, the Village Officer and two credible persons and the copy of the SSLC book, certifying that the child was born to them. Based on the above materials, the 8th respondent was recorded as the father of the child as per the procedure under the Rules. There is no illegality in Exts.P16 birth report and P17 birth certificate.

(3.) I have heard the learned counsel for the petitioner, the learned Senior Government Pleader and the learned Standing Counsel for respondents 2 to 5. Although notice was served on the respondents 7 to 12, there is no appearance for them.