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2008 DIGILAW 361 (GUJ)

SHRADDHA ROHITBHAI TAILOR v. STALE OF GUJARAT

2008-08-22

JAYANT PATEL

body2008
JAYANT PATEL, J. ( 1 ) LEAVE to delete Respondent No. 3, since mr. Majmudar, learned Counsel for the petitioner, has stated that he is not pressing the prayer at 22 (C) at this stage. as even otherwise also, the same will be consequential on account of the change. if affected, in the register maintained under the Registration of Birth and Death Act, 1969 (hereinafter referred to as the 'act' for short ). ( 2 ) RULE. Ms. Kotecha, learned AGP waives service of notice of Rule for respondents No. 1 and 2. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard. ( 3 ) THE short facts of the case appears to be that the petitioner was born on 21. 6. 1992. However, at the time of birth in the register, when the entry was recorded, the sex was mentioned as 'female'. The petitioner studied up to 10th Standard and even the School Leaving Certificate is also issued as if the petitioner is a female known as 'shraddhaben'. As per the petitioner, thereafter the petitioner has developed the physical character as that of a male and the petitioner thereafter was examined by various doctors, whose certificates are produced namely; Dr. Nirmal A. Vaniawala, dr. Bhupendra N. Kharwar and Dr. Pradip r. Atodaria and it has been certified by the aforesaid private doctors that the petitioner has developed physical organ of a male and, therefore, the petitioner has been declared as male person. Since the the entry of the register maintained under the Act the sex of the petitioner is shown as female, the petitioner is seeking alteration in the entry as male and, therefore, under these circumstances, the present petition. ( 4 ) HEARD Mr. Majmudar, learned Counsel appearing for the petitioner and ms. Kotecha, learned AGP for the State authorities. ( 5 ) UPON hearing the learned Counsel appearing for both the sides, it appears that the issues arise for consideration in the present petition are the same as they were considered by the Division Bench of this court (Coram: D. M. Dharmadhikari, C. J. And C. K. Thakkar, J.) in the case of Mulla faizal @ Fazilabanu Suleman Ibrahim v. State of Gujarat and Ors. , reported in 2000 (2) GLH, 1. , reported in 2000 (2) GLH, 1. In the said case, it was also for the change of entry in the register maintained under the Act from female to male. This Court had, inter alia, observed as under: 6. We have heard learned counsel appearing for the respondent-authorities, who opposed the claim of the appellant for change of entry regarding his sex and in support of this stand, placed reliance on the letter dated 15. 10. 1999 of the Government sent by the Deputy Director of Census operation to the Chief Registrar of Births and Deaths and Director of Health Services and Family Welfare, Himachal Pradesh on a query made by the authority for clarification to them. The relevant part of the letter dated 15. 10. 1990 reads : ". . . I am to invite a reference to your letter No. 19/25/77-Med-II-Vol. VIII-1412 dated 01. 03. 1990 on the above subject and to say that as per the provisions of the RBD act, 1969, the particulars of vital events registered have to be confined only to the details relating to the event at the relevant time of birth or death. Any subsequent change in the details cannot find a place in the register of births/deaths unless it is provided for in the Act. In the instant case, reported change of sex of Miss Neera Devi from female to male consequent upon a surgical operation is a subsequent change after the event had been registered. Therefore, this change cannot be recorded in the registration records. In this connection, your kind attention is invited to section 15 of the RBD Act, 1969, which provides for correction and cancellation of entry in the register of births and deaths where such entry is found to be erroneous in the form or substance or has been fraudulently or improperly made. The aforesaid section, therefore, cannot be invoked for correcting subsequent change in sex as there was no registration of birth. . . . " a careful reading of the contents of the letter clearly shows that it is applicable only to the case of claim for change of entry of sex made on the basis of change of sex by operation. As the facts reveal, the present case is not one of change of sex of the appellant by operation. . . . " a careful reading of the contents of the letter clearly shows that it is applicable only to the case of claim for change of entry of sex made on the basis of change of sex by operation. As the facts reveal, the present case is not one of change of sex of the appellant by operation. His claim is based on the medical opinion that he was born a natural male with some deformity of the sexual organs. 7. Learned counsel for the respondents made an ttempt to argue that under the provisions of the Act and the Rules, such a claim or change of entry regarding sex cannot be allowed. We find that the stand taken by the respondentu authorities is wholly unjustified and, in fact, inhman. The relevant provisions of Section 15 of the registration of Births and Deaths Act, 1969 and Rule 12 of Registration of Births and deaths Rules, 1973, framed by the State of gujarat be noticed, which would show that the appellant is fully justified to invoke the authority of the respondents for obtaining a changof entry regarding his sex in the birth register :-". . . 15. Correction or cancellation of entry in the re istry 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 thereto the date of the correction or cancellation. Rule 12. ". . . 12. Rule 12. ". . . 12. Correction or cancellation of entry in the register of births and deaths : (1) If it is reported to the registrar that 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 his possession, the registrar shall enquire in to the matter and if he is satisfied that any such error has been made, h 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 to the District Registrar. (2) In the case referred to in sub-rule (1)if the register is not in his possession, the registrar shall make a report to the District registrar and call for relevant register and after enquiring in to the matter, if he is satisfied that any such error has been made, make the necessary correction. (3) Any such correction as mentioned in sub rule (2) shall be countersigned by the district Registrar when the register is received from the Registrar. (4) If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under section 15 upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case. (5) Notwithstanding anything contained in sub rule (1) and sub rule (4), the registrar shall make report of any correction of the kind referred to therein giving necessary details to the District registrar. (6) If it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or improperly made, he shall make a report giving necessary details to the officer authorized by the Chief Registrar under section 25 and shall act according to the directions of the officer so authorized. (7) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under section 8 or section 9. . . . " (Emphasis supplied) 8. (7) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under section 8 or section 9. . . . " (Emphasis supplied) 8. We need not go in detail into the medical literature that has been produced before us as that would be a subject matter. of enquiry before the respondent-authorities. It is enough for us to mention that such a freak of nature is recognized by the medical science. Physical phenomenon 'hypospadias' has been defined in butter worths Medical Dictionary as under : ". . . Hypospadias. A congenital defect of the wall of the male urethra or of the vagina so that instead of the normal external orifice there is an opening for a greater or lesser distance on the under-side of the penis or in the vagina. . . . " As has been explained on the basis of medical literatureproduced on behalf of the appellant, contained in Annexure 'f', the learned counsel explains that in cases of such deformities at the time of birth, the genital organ or the male organ in the case of the appellant was concealed under the surface of the skin and the penis had to be opened by performing a surgery. In Modi's medical Jurisprudence with regard to the sexual potency of such cases of hypospadias, the following opinion has been expressed:". . . Hypospadias, which is characterized by the urethral orifice being situated on the undersurface may be associated with male pseudohermaphroditism, does not, as a rule, produce incapacity for sexual intercourse, unless it is associated with a marked deformity of the penis which may interfere with its intromission into the vagina. Sterility in such a case depends upon the position of the urethral orifice, and it is assumed if the urethral orifice is so placed as to prevent the deposition of semen within the labia of the vulva. Spermatozoa, if deposited within the labia, can certainly travel upwards into the vaginal canal owing to their motile power. . . . " we are surprised to find that the respondent-authorities are opposing the petition on an unreasonable ground. Spermatozoa, if deposited within the labia, can certainly travel upwards into the vaginal canal owing to their motile power. . . . " we are surprised to find that the respondent-authorities are opposing the petition on an unreasonable ground. The provisions of Section 15 of the Act clearly permit correction of an entry in the Register of births if it is found to be "erroneous in form or substance or has been. . . improperly made. " 9. Sub-rule (4) of Rule 12 quoted above allows the concerned authority, i. e. the registrar, to correct the entry regarding birth in the birth register if the same is erroneous in substance. The person seeking change of entry has to set forth the nature of the error and true facts of the case and support the same by two credible persons having knowledge of the facts. 10, Since the respondent-authorities, who are in charge of maintenance of Register of Births, have been enjoined with a duty to entertain applications for correction of entries in the Register and can for that purpose make necessary enquiries, the learned Single Judge was not right in relegating the appellant to a remedy of civil suit for seeking a declaration regarding his sex. In our considered opinion, the authorities, under the provisions of Section 15 read with Rule 12 of the Rules framed thereunder, are duty-bound in law to make necessary enquiries and if necessary to obtain medical opinion to grant change of entry i the birth register regarding the sex of the appellant and to issue to him a corrected birth certificate. We find absolutely no legal impediment in the same and the reliance on the letter quoted above is totally misplaced. The said letter does not at all apply to the case like the present one. Here the change in the entries in the register is sought not on the basis of change of sex, but on the basis that the appellant was born as a natural male although with so deformity in his sexual organ. It would not be proper for the court to relegate the appellant to an onerous remedy of civil suit even if that be held to be available to him. 11. As a result of the discussion aforesaid, we allow this appeal, set aside the order of the learned Single Judge dated 17. 2. It would not be proper for the court to relegate the appellant to an onerous remedy of civil suit even if that be held to be available to him. 11. As a result of the discussion aforesaid, we allow this appeal, set aside the order of the learned Single Judge dated 17. 2. 1999 and allow the Special Civil application. The respondents are directed to hold an enquiry on the application made by the appellant for change of entry of sex in the Register of Births. The appellant shall be given a notice by the respondents for appearance before them, with all documentary and oral evidence, to substantiate his claim for change of entry regarding his sex in the Register of Births. Let the respondents complete the enquiry within a reasonable period of three months from the date of service on them of a copy of this judgment and pass consequential orders of granting change in the entry regarding sex in the Register of Births and issue certificate on the said entry to the appellant if he is able to substantiate his claim before the authorities. Let the order be obeyed within the time allotted by this court and without any further delay. Direct service is permitted. ( 6 ) IF the facts of the present case are considered, more or less the similar directions deserves to be issued. Since as observed by a Division Bench of this Court in the above referred decision, there is power with the authority to hold an inquiry, and then to make appropriate change in the entry of sex in the register of birth under the Act. However, it also appears that the competent authority under the Act, of its own may not be in a position to finalise the aspect for ascertainment of the sex of the petitioner, and therefore, assistant of the doctor, who may be expert in the said field would be required. Since the Secretary, department of Health and Family Welfare of the State Government is also party in the present proceedings being respondent no. 1, it will be required for the Secretary of the Health and Family Welfare of the state Government to assign such work for medical examination of the petitioner through the Doctor, who may be found proper by him. ( 7 ) HENCE, following directions are issued. 1, it will be required for the Secretary of the Health and Family Welfare of the state Government to assign such work for medical examination of the petitioner through the Doctor, who may be found proper by him. ( 7 ) HENCE, following directions are issued. A) The respondent No. I shall get the medical examination undertaken of the petitioner through competent Government doctor for ascertainment of the sex of the petitioner as male. B) The petitioner shall cooperate with the medical examination, as and when desired by the concerned Doctor. C) The Doctor, who may undertake medical examination of the petitioner shall certify about the sex of the petitioner. D) The aforesaid exercise shall be completed within a period of three months from the receipt of the order of this Court. E) In the event as per the certificate of the Doctor, the sex of the petitioner is found as male, the respondent No. 2, subject to any other inquiry, which he may find it proper to be held, shall make necessary change in the record of birth under the Act of the petitioner accordingly. The same also be completed within a period of one month from the receipt of such certificate. F) In the event the change is effected by the respondent No. 2. fresh certificate shall be issued to the petitioner. It will also be open to the petitioner to produce such certificate before the appropriate authority as and when required. G) If the change is effected in the register of birth of the petitioner as male, it would also be open to the petitioner to change the name after following procedure in accordance with law. ( 8 ) THE petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost. Direct service is permitted. petition is allowed.