A child born during a valid marriage is presumed legitimate, and changes to birth records require adherence to statutory procedures and principles of natural justice.

JUDGMENT :

C.S. DIAS, J.

1. The petitioner was married to the 7^th respondent on 26.05.2010. A son, who is arrayed as the 9^th respondent, was born in their marriage on 07.03.2011. The child’s birth was registered with the 2^nd respondent - Municipality, and the petitioner and the 7^th respondent were recorded as the child’s parents. Post-delivery, the 7^th respondent and the child went to the 7^th respondent’s parental home for recuperation. But, on 12.04.2011, both of them went missing. The 7^th respondent’s father lodged Ext.P2 FIR with the Payyannur Police. Simultaneously, the petitioner filed a writ petition before this Court, seeking a writ of habeas corpus. Shockingly, the 7^th respondent appeared and stated that she desired to live with her lover, the 8^th respondent. Recording her statement, by Ext.P2(a) judgment, this Court closed the writ petition. In view of the irretrievable breakdown of the marriage, the couple executed Ext.P3 agreement to live separately. Subsequently, by Ext.P4 judgment, their marriage was dissolved on mutual consent. Later, through Ext.P7 information received under the Right to Information Act, 2005, the petitioner learnt that, by Ext.P9 order passed by the 4^th respondent ― Registrar of Births and Deaths of the Municipality ― on Ext.P10 joint application submitted by the respondents 7 and 8, the petitioner’s name was substituted with that of the 8^th respondent as the child’s father in the Birth Register. The 4^th respondent also carried out corresponding changes in the Birth Register and issued Ext.P16 birth report and consequently the 2^nd respondent issued Ext.P17 birth certificate. The changes were effected without notice or hearing the petitioner.

The 4^th respondent has failed to adhere to the procedure laid down under Section 15 of the Registration of Births and Deaths Act, 1969, Rule 11 of the Kerala Registration of Births and Deaths Rules, 1999 and Ext.P19 Circular. The Municipality has also failed to comprehend the conclusive presumption under Section 112 of the Indian Evidence Act, 1872. Ext. P16 birth report and Ext.P17 birth certificate are arbitrary and illegal, and passed in flagrant violation of the principles of natural justice.

Thus, they are liable to be quashed.

2. In the counter affidavit of the 2^nd respondent, it is stated that a male child was born to the 7^th respondent on 07.03.2011 at the 5^th respondent hospital. At the time of registration of the child’s birth, the petitioner’s name was recorded as the child’s father. However, on 10.12.2012, the respondents 7 and 8 submitted a joint application stating that the petitioner’s name was erroneously recorded as the child’s father instead of that of the 8^th respondent. They submitted certificates from the 5^th respondent Hospital, the Village Officer and two credible persons and the copy of the SSLC book, certifying that the child was born to them. Based on the above materials, the 8^th respondent was recorded as the father of the child as per the procedure under the Rules. There is no illegality in Exts.P16 birth report and P17 birth certificate.

3. I have heard the learned counsel for the petitioner, the learned Senior Government Pleader and the learned Standing Counsel for respondents 2 to 5. Although notice was served on the respondents 7 to 12, there is no appearance for them.

4. The following facts are not in dispute: the petitioner and the 7^th respondent were married on 26.05.2010; the child was born on 07.03.2011; the petitioner’s name was initially recorded as the child’s father in the birth records; and by Ext.P4 judgment, the marriage between the petitioner and the 7^th respondent was dissolved on 13.12.2011.

5. In the above context, it is necessary to refer to Section 112 of the Indian Evidence Act, 1872, which reads as follows:

“112. Birth during marriage, conclusive proof of legitimacy ― The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days af