A magistrate is empowered to verify the correctness of birth or death, and the respondents were directed to issue the non-availability certificate if the birth claimed by the petitioner is not seen registered with the 1st respondent.

JUDGMENT :

The petitioner seeks to direct the respondents to issue a non-availability certificate of birth pertaining to the petitioner under Section 17(4) of the Registration of Births and Deaths Act within a time limit fixed by this Court.

2. The case of the petitioner in short, is as follows:

The petitioner is the mother of Sanju Sadanandan who was born on 29.05.1982. The petitioner delivered the child at her home. His date of birth in the School Admission Register is 29.05.1982. In the Passport, Driving licence and Election Commission identity card, the date of birth is shown as 29.05.1982. As the petitioner’s son wanted to renew his passport, a certificate from the office of Births and Deaths Registrar became necessary.

3. The petitioner submitted an application on 13.01.2020. The petitioner was informed that there is a birth recorded by Thiruvananthapuram Corporation in respect of a child with the same names of the mother and father, but with a different date of birth. The said registration is disclosed by Ext.P5. The petitioner filed Ext.P7 affidavit before the 1st respondent stating that her son was born on 29.05.1982 at home in Chirayinkeezhu. In Ext.P5 Birth Certificate, it has been stated that one Indira delivered a male child on 26.02.1982 at SAT Hospital, Thiruvananthapuram. For the said reason, the 1st respondent is not issuing Non-availability Certificate to the petitioner.

4. The 2nd respondent filed a counter affidavit and contested the writ petition. The 2nd respondent stated that on receiving application for Non-availability Certificate from the petitioner, the 2nd respondent made enquiry. From the enquiry, the 2nd respondent came to know that the birth of the petitioner’s son has already been registered with slightly changed address and a different date, as can be seen from Ext.P5. Since the son of the petitioner was born within the jurisdiction of Thiruvananthapuram Corporation, only a Registrar under the said Corporation is competent to issue any certificate. The petitioner will have to approach the Registrar of Births and Deaths, Thiruvananthapuram Corporation for getting Non-availability Certificate, under Rule 13 of the Registration of Births and Deaths Rules, 1999.

5. The learned counsel for the petitioner urged that the petitioner’s son was born at home in Chirayinkeezhu. Therefore, Ext.P5 Birth Certificate issued by the Thiruvananthapuram Corporation, though bears same parental names, cannot be in respect of the petitioner’s son. The learned counsel for the petitioner further contended that in the light of the judgment of this Court in Kausalya P.K. v. Secretary, Kaiparambu Grama Panchayat & Ors. ILR 2019 (3) Ker. 225, only a Magistrate of the First Class is empowered to make enquiry in the matter of Births and Deaths and the 1st respondent is bound to issue a Non-availability Certificate if the birth is not seen recorded in the office of the 1st respondent.

6. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing respondents 1 and 2.

7. In the judgment in Kausalya P.K. (supra), this Court held that Section 14 of the Registration of Births and Deaths Act, 1969 provides that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate, after verifying the correctness of the birth or death. This Court further held that it is for the Magistrate of the First Class/Presidency Magistrate to make necessary verification of the correctness of birth or death. Such power and duty entrusted with the Magistrate can be exercised only by the Magistrate. Neither the Act nor the Rules confer a power or casts a duty on respondents 1 and 2 to make a factual adjudication on birth or death of any person, which is sought to be registered on or after one year of the birth/death.

8. However, it may be noted that on receipt of an application, the 1st respondent has