• Court order for DOB change in passport by Indian consulate USA

Hello,

I have recently discovered that the date of birth on my Birth certificate is different than all other documents(passport, tenth certificate, pan card, school leaving certificate etc). Birth Certificate has the correct DOB. I had applied in Indian consulate Atlanta to change my passport based on the DOB on my Birth certificate and an affidavit from my parents stating the mistake but my application was rejected. Consulate here is asking for the Court order to get the changes done. Adding some more information to establish better understanding: 
a) The difference is only 3 days. 
b) my year of birth is 1978
c) Birth Place is Haryana
d) First Passport was issued in UP
e) renewed passport was issued in Mumbai
f) currently living in USA
g) my parents live in Mumbai


My questions are:
1. What is the procedure for filing the case to get the court order?
2. Where do I need to file the case? Haryana / UP / Maharashtra (Mumbai)
3. How long it takes to get any such order?
4. Do you have any Advocate who can file the case on my behalf in the required jurisdiction and get me the court order? My Parents can participate or travel wherever required for this case.
5. How much it will cost to get this court order?
6. How does memorandum (No. VI/401/2/5/2001) 5 years limit to get the changes done impacts this case?

Thanks.
Asked 10 months ago in Civil Law from United States
1. You cannot directly go to court to have the error rectified. An application for rectification will have to be filed to the Regional Passport Office along with a supporting affidavit. Once the application is rejected the matter can be carried to the civil court which can then issue binding directions to RPO.  That your matric certificate, pan card and school leaving certificate also have an erroneous entry is likely to be a roadblock to your case.

2. The case will have to be filed in the court which has jurisdiction over the RPO to which application for rectification is made. In your case it can be either Haryana or Mumbai.

3. It may take a few months for the court order to be out depending on the workload of the court.

4. The cost will be the fee of your lawyer.

5. The memorandum does not curtail the powers of the court to do justice. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) you have to make application to registrar of birth and death for rectification of your birth certificate 

2) enclose copy of affidavit of your parents 

3) if Registrar rejects your application file writ petition in HC to direct registrar to rectify your birth certificate 

4) writ petition has to be filed in HC in Haryana as Birth  certificate issued in Haryana 

5) litigation fees vary

6) it may take a year or so 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Hi, you have to file a Suit for Deceleration before the jurisdictional court in Harayana for change of date of birth and  correct the same in Retrospective effect  in all the documents i.e in passport, SSLC, and so on.  

2. You have to make State of Harayana, SSLC Board and Passport authorities as  a party.

3. Normally court proceedings will take 1 year approximately.

4. For the advocate you have to contact local advocate and fee structure is vary from advocate to advocates.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Dear Querist
My opinion on your queries are as under:

1. What is the procedure for filing the case to get the court order?
Opinion: File a civil suit for declaration before civil court of area where you born.
 
2. Where do I need to file the case? Haryana / UP / Maharashtra (Mumbai)
Opinion: where your were born.

3. How long it takes to get any such order?
Opinion: It may be more then six months.

4. Do you have any Advocate who can file the case on my behalf in the required jurisdiction and get me the court order? My Parents can participate or travel wherever required for this case.
Opinion: you may execute a Power of attorney to your father and he can contact me over the phone or you can contact me over the phone, I can file a civil case on behalf of you through your father after POA.

5. How much it will cost to get this court order?
Opinion: It's depend on communication, there is minimum court fee which will be affixed in court and remaining will be the advocate fee which is depend on the advocate, you can contact then discuss.

6. How does memorandum (No. VI/401/2/5/2001) 5 years limit to get the changes done impacts this case?
Opinion: Yes, this memorandum will applicable in your case and your application for change/correction in Date of Birth can be rejected until and unless your passport was issued by the authority when you were minor.


As per the memorandum (No. VI/401/2/5/2001) dated 26.11.2015, your case is very complicated.
 
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1) Passport authority is bound by the Act, the Rules framed thereunder and the instructions issued by the Ministry of External Affairs from time to time. As per instructions dated 18.4.2001, a Passport Officer is competent to make alterations of a technical nature only. The instructions specifically provide that where an entry is made on the basis of a supporting document issued by one competent authority i.e. school/education authority and the applicant subsequently requests for change, on the basis of a certificate issued by another competent authority i.e. a Municipal Authority, the Passport Officer should direct the applicant to obtain an order from a civil Court, certifying the validity of birth/place of birth

2) High Court judicature at Mumbai in CWP No. 1072 of 2000 filed by Shri Jigar Harish Shah, the following clarifications are issued.

a) Where applicant is seeking rectification/correction of a mistake in the entry on date of birth/place of birth in the passport, PIA may after verifying/satisfying himself, affect the correction treating the same as a technical correction. There is no need for a declaratory order in such cases.

b) Where a competent authority issuing a birth certificate or an educational board registering a date of birth alongwith place of birth as valid were to issue any correction or amendment, PIA may affect the necessary amendment in a passport without insisting on a Court order. As per the provisions of Section 21 of the General Clauses Act, 1997, a competent authority issuing a certificate could also make necessary amendment to the same.

c) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. a school/educational authority and the applicant subsequently requests for a change on the basis of a certificate issued by another competent authority i.e. Municipal Authorities resulting in conflicting sources of valid proof, the PIA should direct the applicant to obtain a civil order from the competent Court of jurisdiction, certifying the valid date of birth/place of birth.

3) Clause (c), the provision relied upon by the Passport Officer, directs a Passport Officer not to adjudicate a plea for correction, where the claim is based upon two sets of documents, one being a matriculation certificate and the other being a certificate of birth issued by the Registrar of Births and Deaths. In such a situation, the instructions direct a Passport authority to relegate the applicant to a civil Court.

4) High Court of Bombay Jigar Harish Shah v. Union of India and Anr. , wherein the Union of India raised a defence similar to that urged in the present case. While considering the matter, it was held as follows:

XXXX XXXX XXXX The passport has been issued in favour of the petitioner by the Passport authority by passing an order in that regard as contemplated by Sub-section (2) of Section 5. Once we see that the Passport is issued by an order by a competent authority under the provisions of Section 5(2) of the Passport Act, it is apparent that the provisions of Section 21 of the General Clauses Act, 1897 would come into play and such an authority would be having the power to add to, amend,vary or rescind an order issued by it earlier. The Passport Information Book let,which was brought to our notice by Mr.Mehta, contains a note below paragraph 4 that the date of birth/place of birth once included in the Passport will not be changed. For change, the applicant will have to make a fresh application enclosing relevant evidence for obtaining fresh Passport with correct date and place of birth alongwith a Court order by a judicial magistrate directing the Passport Office to change the date or place of birth. No provision was, however, brought to our notice by Mr.Mehta empowering the judicial magistrate for issuing such a direction after holding an enquiry in relation to the correct date of birth of a person seeking Passport except the Circular dated 22.12.1994 of the Ministry of External Affairs (CPU Division) wherein it is stipulated that where a change of date of birth in the Passport is being sought, the person concerned should be advised to produce the original copy of a declaratory order issued by the First Class Judicial Magistrate in India instructing that a correction in date of birth be made. We are afraid that such a circular whether would confer jurisdiction on the Magistrate if otherwise, he is not having under any provisions of law.

XXXX XXXX XXXX In this matter, however, when the provisions of Section 21 of the General Clauses Act have been brought to our notice and when we see that correction in the Passport in relation to the entries therein including in relation to the date of birth can be made by the Passport Authority itself having regard to the provisions of Section 21 of the General Clauses Act, we do not feel it proper to refer the matter to the Judicial Magistrate whose Courts, we are aware, are already overburdened and further in particular when the Judicial Magistrates have not been conferred with such a jurisdiction under any law. We, therefore, instead of issuing a direction to the Judicial Magistrate in this matter, direct the Passport Authority itself to hold an enquiry on hearing the petitioner in relation to the petitioner's claim about his correct date of birth and in case the Passport Authority is satisfied with regard to the claim put forth by the petitioner. We further order it to effect the necessary change in the Passport issued in favour of the petitioner. Petition is allowed in the above terms. Rule is made absolute.
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
High Court of Gujarat in Kokilaben J. Panchal v. Regional Passport Officer, Ahmedabad . After considering the judgement of the Bombay High Court, the instructions dated 18.4.2001, the provisions of Births and Death Registration Act, 1969 and the provisions of the General Clauses Act, 1897, it was held that the Passport authority was not justified in refusing to entertain the application for change of date of birth and/or place of birth and instead insisting that an order be obtained from a Court. A relevant extract of the aforementioned judgement is reproduced hereunder:

XXX XXXX XXX ...As held in the aforesaid decisions and even as per the instructions issued by the Ministry of External Affairs, the passport authority has jurisdiction to make necessary correction in the passport so far it relates to the date of birth and place of birth is concerned on satisfying itself with regard to genuineness of the document/s. Therefore, the passport authority is required to hold an appropriate enquiry on the application being made to correct the date of birth and/or place of birth in the existing passport and/or for issuance of fresh passport mentioning the correct date of birth as per the certificate issued by the competent authority issued under the provisions of Births and Deaths Registration Act, 1969 in a case where there is discrepancy in the date of birth and/or place mentioned in the certificate issued by the competent authority under the provisions of the Births and Deaths Registration Act and the School Leaving Certificate. However, for that purpose, the authority is required to be satisfied with regard to the claim put forth by the applicant (petitioner/s in the instant case) on the basis of the supporting documents issued by the competent authority issued under the provisions of the Births and Deaths Registration Act.
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. You shall have to change the DOB mentioned in all your educational certificates and also passport,

2. File a Declaratory Suit at the Civil Court of Haryana praying for a declaration that your DOB has been wrongly mentioned in all your educational certificates and passport and praying for a direction on your Educational Boards and passport authorities to amend your date of birth,

3. With this court order, you can get all your educational certificates and passport amended duly mentioning the correct date of birth,

4. It may take around 10 months and any Advocate with your POA can file the suit for and on your behalf,

5. Advocates fees will vary from person to person and place to place,

6. You shall have to say that you have notice the mistake recently.

  
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. What is the procedure for filing the case to get the court order?
You have to first approach the educational authorities to correct the date of birth to that of the birth certificate and to apply for it in writing by enclosing the photocopies of your bate of birth certificate along with the copies of the educational certificates. The authorities will refuse to make corrections but ask them to give it in writing and based on that you may file a declaration suit with the concerned court to declare your correct date of birth as per date of birth certificate issued by the Municipality/Corporation or the registrar of births and deaths. 
The court after satisfying the correctness of the details, may pass an order to this effect.



2. Where do I need to file the case? Haryana / UP / Maharashtra (Mumbai)
Wherever you did he 10th standard examination


3. How long it takes to get any such order?
In a matter of three months to six months.



4. Do you have any Advocate who can file the case on my behalf in the required jurisdiction and get me the court order? My Parents can participate or travel wherever required for this case.
It is you who have got to file the case and not your parents because you are an adult now. For a lawyer you have to look for one yourself.



5. How much it will cost to get this court order?
It depends on the lawyer whom you would like to engage


T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
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