Saturday, June 18, 2022

Altering Father's Name In Birth Certificate-Biological Father's Consent Not Required In Absence Of Challenge To Adoption Deed: Gujarat High Court

The petitioners herein were guardians of their minor son. Petitioner 2 (the husband) was the second husband of the Petitioner 1 (wife) and the minor was born out of her first marriage. Petitioner 1 and her first husband had executed a deed of divorce and Petitioner 1 eventually married petitioner 2, who also agreed to take all responsibilities for her minor son, and a deed of adoption was executed which was duly registered.

The petitioners then filed representation to the respondent authority to replace/mention the name of Petitioner 2 as the father, in place of the minor's biological father, in his birth certificate. This application for correction was refused by the respondent, asking the petitioners to produce an order of the local court with regard to the adoption.

The counsel for the petitioners argued that, as per Section 16 Hindu Adoptions and Maintenance Act, 1956 (hereinafter "the Adoptions Act"), only registered adoption is mandatory. He also referred to circulars dated 15.05.2015 and 31.01.2018 issued by the Ministry of Home Affairs, which have stated that only a registered adoption deed is mandatory and the requirement of the decree of adoption from the court concerned has been discontinued. It was also pointed out that the circulars that the impugned order was premised upon had since been cancelled by a subsequent order by the state authority.

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The counsel for the respondent candidly admitted that the circulars that the impugned order was based upon have since been quashed. He submitted that, as per provision of Section 9 of the Adoptions Act, the Registrar has to verify whether the Adoption Deed is valid or not and hence, the biological father has to be made a party respondent in the writ petition in order to verify whether the adoption deed produced by the petitioners is legal or valid.

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The Court was of the opinion that cancellation of the orders that the respondent's decision was based upon, was ground alone for quashing the impugned order.

It then referred to Section 15 of the Registration of Births and Deaths Act, 1969 and noted that Registrar can correct an entry already made in the Birth Register if the same is conceded, and such correction should legitimately take within its sweep the correction of entries rightfully made since it is the correction of the name of the child at the instance of the parents of wards.

The Court then referred to the case of Tushar Kanaiyalal Vyas (Thru. POA) vs. State of Gujarat & Ors., as per which, when the decree of divorce between the biological parents clearly provided that custody of their minor child would be with the wife and the registered deed of adoption has not been challenged, a presumption as per the provision of Section 16 of the Adoptions Act was drawn in favour of the petitioners.

In the present case, there was a divorce deed that was executed, it was mutually decided that custody of the minor son was accepted by the mother-petitioner and there was a valid adoption deed in which the adoptive father-petitioner had assumed responsibility for the minor son. The biological father had neither raised any objection to the custody of the minor nor had he raised any objection to his ex-wife's subsequent marriage and the minor's adoption.
In light of the above, the Court held that the stage of obtaining consent, as defined under section 9 of the Adoptions Act, cannot be invoked at the stage of incorporating the father's name (adoptive) in the birth record of the son, after the divorce and adoption deeds have been registered and have not been questioned. Thus, neither the biological father, i.e. the former husband of the petitioner no.1 is required to be made as a party to the writ proceedings for ascertaining his consent nor his opinion is necessary to be called for by the Registrar.

The Court also opined that as per the provision of section 16 of the Hindu Adoptions and Maintenance Act, 1956, a presumption has to be drawn in favour of the petitioners since there is no rebuttal of the adoption deed of the minor. The Registrar, who is the competent authority under the Registration Act, 1969 can only verify the correction of the adoption deed and if the same is found to be duly registered and valid, he has to make necessary corrections/changes in the birth records of the adopted child.

The Court directed the respondent authority to correct the father's name and incorporate the name of Petitioner 2 in the minor's birth certificate and accordingly issue a fresh certificate within one month from the date of receipt of the order.

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