Authorities Can’t Insist For Civil Court Decree To Make Changes In Birth Records When Registered Deed Of Adoption Present: Gujarat High Court

The court was hearing a bunch of petitions in which the question before the court was whether the competent authorities can refuse to change the birth records in the absence of a decree of a competent court.  

While allowing the petitions, the single judge bench of Justice Biren Vaishnav held:

“The parties to the Registration Deed have consented to take the child in adoption. No objections have come from the biological father with regard to the mode and the manner of adoption and therefore as held that the presumption though being rebuttable no roadblock or dispute has been raised for the adoption of the child, relegating the parties then to undertake the rigmarole of approaching the Court when the deed of adoption is filed before the Registrar would not render the Registrar powerless to make the corrections.”

Kaushal Pandya, the counsel appearing for Surat Municipal Corporation, contended that unless the parties approach the appropriate court under the Hindu Adoptions and Maintenance Act, 1956 and obtain decrees for validating adoption, no request for alterations of name in the birth certificates can be entertained.

The court agreed with the decision of single judge bench of Gujarat High Court in Chhayaben Hetalben Asodariya v. The Registrar of Birth and Death, in which it was laid down that once the deed of adoption has been registered and the same has not challenged by the parties, the stage of obtaining consent under Section 9 of the Hindu Adoption and Maintenance Act, 1956 cannot be invoked at the time of incorporating the adoptive father’s name in the birth record, after the divorce deed and the adoption deed has been registered and it has been not been questioned in any court of law or there is no legal embargo.

The court disagreed with a Bombay High Court decision in which a division bench held that the presumption under Section 16 of the Act has to be a presumption before the court and not the Registrar. The Bombay High Court had further held that the Registrar has no power to decide whether the deed of adoption is valid and the power to delete the name of the biological father from the birth records is drastic.

Justice Vaishnav relied upon the judgement of Supreme Court in Jai Singh v. Shakuntala, in which on the issue of statutory presumption under Section 16 of the Adoption Act, the Supreme Court has held, “The Section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law.”

In this background, the court held that the communications in the respective petitions by which the authorities have rejected the request of the petitioners to carry out the corrections in the birth certificates and for insisting for an order of the Civil Court, are quashed and set aside.

The court directed the concerned Registrar, Birth and Death Registration to make necessary corrections as prayed for by the respective petitioners, in the birth registers as well as their respective birth certificates.

Case Title: Khojema Saifudin Dodiya v. Registrar of Birth and Death/Chief Officer, Dhoraji Nagarpalika

Case Citation: 2023 Livelaw (Guj) 40

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