IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 10100 of 2009(F) -------------------------- PETITIONER(S): --------------- JOSE ELLICKAL, ANNUR (POST), MOORIKOVAL, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL SRI.K.K. CHANDRAN PILLAI. RESPONDENT(S): --------------- 1. THE REGISTRAR OF BIRTHS & DEATHS, AND THE HEALTH INSPECTOR, GRADE-I, KANHANGAD MUNICIPALITY, KASARAGOD DISTRICT. 2. THE SECRETARY, KANHANGAD MUNICIPALITY, KASARAGOD DISTRICT. 3. THE CHIEF REGISTRAR OF BIRTH & DEATHS, THIRUVANANTHAPURAM. ADV. SRI.T.K.VIPINDAS FOR R1,2 SMT.P.K.PRIYA FOR R1,2 GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.10100 of 2009 ================== Dated this the 2nd day of April, 2009 J U D G M E N T This writ petition, the third one for the same relief, is for correction of date of birth of the petitioner's daughter, Asha Jose, in the register of births maintained by the 1st respondent. According to the petitioner, his daughter was borne in the early hours of 23.10.1984. The mother was taken to the labour room of the hospital, where the mother was admitted for delivery at 10.30 on 22.10.1984 and the daughter was delivered at 1 a.m. on 23.10.1984. However, mistakenly the hospital authorities reported to the 1st respondent that the petitioner's daughter was born at 10.40 p.m. on 22.10.1984. The petitioner wants to correct that mistake. The petitioner approached this Court for the same relief by filing W.P.(C).No.38040/2008. In Ext.P2 judgment, I directed the 1st respondent to consider and pass orders on Ext.P1 application submitted by the petitioner in that regard in the light of the judgments referred to therein. However, by Ext.P6 order, the 1st respondent rejected the application of the petitioner. The petitioner again approached this Court by filing W.P.(C).No.536/2009. Since the 1st respondent again seriously contested the matter, I considered the matter on merits and passed Ext.P13 judgment, which reads thus: W.P.C.10100/09 2 “The petitioner is the father of Asha Jose. According to the petitioner, his daughter Asha Jose was born on 23.10.1984 in the 4th respondent's hospital. However, by mistake, the intimation from the hospital authorities to the 1st respondent mentioned the date of birth of the petitioner's daughter as 22.10.1984. According to the petitioner, petitioner's wife Elsamma was admitted in the 4th respondent's nursing home one week prior to 23.10.1984. Labour pain started on 10.30 p.m. on 22.10.1984 and she was taken to operation theater at about 12.30 a.m. on 23.10.1984. Caeserian Section was done at about 1 a.m. on 23.10.1984, pursuant to which only petitioner's daughter Asha Jose was born. Therefore according to the petitioner, the date of birth of the petitioner's daughter is 23.10.1984 and not 22.10.1984. The petitioner therefore submits that the 1st respondent may be directed to correct the birth register accordingly. The petitioner has now produced Exts.P10 and P11, which are the only records now available with the 4th respondent in respect of the birth of the petitioner's daughter. The petitioner would contend that as is clear from Ext.P10, the birth intimation register maintained by the 4th respondent, the register was closed on 22.10.1984 with entry 59 and thereafter entry 60 was included in that register which should have been an entry of 23.10.1984 but it has been shown as 22.10.1984. The petitioner also points out that in between entries 59 and 60 two columns are left blank and the hospital authorities had made an initial with date 22.10.1984. Therefore according to the petitioner evidently the date as against entry 60 which relates to the petitioner's daughter was a mistake and instead of 23.10.1984, the date 22.10.1984 was shown therein. He further points out that in Ext.P11 admission register 22.10.1984 is mentioned as the date of the operation and baby extraction time is shown as 10.40 pm, but that entry as made only on 1.11.1984. According to the petitioner these documents would clearly show that the hospital authorities have made a mistake regarding the date of birth of the petitioner's daughter. An affidavit and additional affidavit have been filed by the 1st respondent who does not dispute Exts.P10 and P11. He also submits that he cannot now with any amount of certainty say anything about the actual facts because the registers now referred to were registers maintained by the former owners of the nursing home. He can only swear to what is seen therein. The counsel for the Municipality with the help of the counter affidavit would submit that they are helpless in the matter since they have to go only by intimation received from the hospital. 2. I have considered the rival contentions in details. 3. At the outset I note that the petitioner or his daughter would not gain anything by stating wrong facts about the date of birth of the petitioner's daughter. Whether it is at 10.40 p.m. on 22.10.1984 or 1 a.m. on 23.10.1984, it would not make much difference except that if 22.10.1984 is accepted as the date of birth, the petitioner's daughter W.P.C.10100/09 3 would have to go through the cumbersome process of getting the petitioner's daughter's school records corrected appropriately, which would delay the matter at least for quite some time. From Ext.P10, I find that there is considerable force in the contentions raised by the petitioner. As pointed out by the petitioner the last entry for 22.10.1984 in Ext.P10 is 59. Therefore the next entry in Ext.P10 register should start with the date 23.10.1984. But here the next entry namely entry 60 again starts with 22.10.1984 which appears to be a mistake. That being so, I am of opinion that the 1st respondent should take a second look into the matter based on above findings. Accordingly the 1st respondent is directed to reconsider the matter and see whether on the basis of the above findings the date of birth entered in the 1st respondent's register in respect of the petitioner's daughter can be appropriately corrected as a mistake committed by the 4th respondent hospital. Orders in this regard shall be passed within two weeks from the date of receipt of a copy of this judgment.” 2. Before going further, it is relevant to note what happened in Court at the time of dictating judgment in open court. After holding that the entry made by the hospital authorities in their registers appears to be a mistake, I originally dictated judgment directing the 1st respondent to correct the date of birth of the petitioner's daughter as 23.10.1984. Then the counsel for the 1st respondent submitted that the 1st respondent himself will reconsider his order and pass fresh orders. Therefore, I corrected the judgment and after holding that the entry in the hospital records is a mistake, I directed the 1st respondent to pass fresh orders after having a second look into the matter based on my findings. Pursuant thereto, the 1st respondent passed Ext.P14 order, which reads thus: W.P.C.10100/09 4 Malayalam portion Malayalam portion Malayalam portion W.P.C.10100/09 5 Malayalam portion Malayalam portion 3. It is interesting to note here that in Ext.P14 the 1st respondent has purported to give his own explanation for the discrepancy in the Register of the hospital, which in the counter affidavit filed in the earlier writ petition by the hospital authorities they W.P.C.10100/09 6 themselves could not explain. Further, in Ext.P14, the 1st respondent says that the birth bearing Serial Nos.40 to 59 were reported to the office of the Municipality on 22.10.1984, which were registered on the same date. The 1st respondent goes on to say that since the birth of the petitioner's daughter was at 10.40 p.m. on 22.10.1984, naturally the same was reported along with other births , since that birth was after the office hours on 22.10.1984. That does not explain the space between serial Nos.59 and 60 with any conviction whatsoever. In fact that was exactly why in my judgment I was inclined to hold that it was a mistake committed by the hospital. In the earlier writ petition, the hospital authority had filed an affidavit, in which they were unable to explain that discrepancy. When the hospital authorities themselves are unable to explain that discrepancy, I am at a loss to understand how the 1st respondent could that easily explain the discrepancy that too against the findings in Ext.P13 judgment. From the same, I am satisfied that the 1st respondent was bent on rejecting the application of the petitioner for correction of birth somehow or other for reasons best known to him. 4. After Ext.P14, the petitioner filed C.C.(C).No.222/09 alleging non-compliance with Ext.P13 judgment, in which notice had been ordered and is pending. It is under these circumstances, the W.P.C.10100/09 7 petitioner has filed this writ petition challenging Ext.P14 order. Even during the course of hearing of contempt case, I had made it known to the counsel for the 1st respondent that I am not at all happy with the conduct of the 1st respondent in the matter and it is better that he makes amends for the same. When this writ petition was taken up also, the same observation was made. But the 1st respondent is obstinate in the matter and tries to justify his action. In fact in Ext.P15 counter affidavit filed by the 1st respondent in the contempt case, he indirectly takes the stand that Ext.P13 judgment is wrong in view of the Division Bench decision of this Court in Registrar (Births and Deaths) v. Jayakrishnan [2003 (2) KLT 701]. Such an attitude is totally unbecoming of the 1st respondent. In fact, by Ext.P14 order, he has negatived the specific finding entered by me in Ext.P13 judgment to the effect that the entry in the hospital registers appears to be a mistake. I do not think that the 1st respondent can validly do that. He has also refused to imbibe the spirit of the said judgment also Therefore, Ext.P14 order is quashed. The 1st respondent is directed to make appropriate corrections in the birth register correcting the date of birth of the petitioner's daughter, Asha Jose, as 23.10.1984 instead of 22.10.1984. A birth certificate showing the corrected date of birth shall also be issued to the petitioner. These shall be done within two W.P.C.10100/09 8 days from the date of receipt of a certified copy of this judgment. 5. In view of the recalcitrant attitude of the 1st respondent who even refuses to accept the judgment of this Court and passes orders contrary to that judgment, against the assurance given by counsel to the Court, I am inclined to direct the 1st respondent to pay exemplary costs in the matter. Accordingly, the 1st respondent is directed to pay an amount of Rs.15,000/- to the petitioner as costs. This cost shall not be debited to the account of the Municipality or the Government. This shall be paid personally by the person who passed Ext.P14 order from his own pocket. The Director of Panchayats shall recover the costs from the salary of the 1st respondent and pay the same to the petitioner, if the same is not paid within four weeks and the matter is not reported to the Dy. Director, before the end of April. This is without prejudice to further orders to be passed in the contempt case pending. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.C.10100/09 9