C.K. Thakker JUDGMENT
D.M. Dharmadhikari, C.J.
1. The facts of this case are extraordinary, calling for grant of extraordinary relief and directions in favour of the appellant. The appellant claims change of entry regarding his sex in the Register of Births maintained under the provisions of Registration of Births & Deaths Act, 1969. The appellant's application for change of entry in the Register of Births regarding his sex having not been granted by the concerned authority, respondent No. 3, District Registrar (Births & Deaths) and Chief District Health Officer, the appellant approached this Court by filing a Special Civil Application, which has been dismissed by the learned single Judge summarily by order dated 17-2-1999 on the ground that the appropriate remedy for the appellant is filing of a civil suit for declaration in the competent Civil Court.
2. The appellant was born on 28-4-1976 at Umarwada in a rural area of Ankkshwar Taluka. According to the appellant, when he was born, the parents of the appellant could not identify his sex as male or female as the external genitals were ambiguous. Since the appellant's private parts as a new born child looked more like that of a female, the parents of the appellant got his name registered in the Register of Births as a female child. The Register was maintained in Umarwada Gram Panchayat. A birth certificate, Annexure "A", was issued by the Panchayat. Since the appellant's private parts showed some deformity, the parents of the appellant consulted a doctor. The doctor advised them to get the child medically checked up every year in the course of his growth. For the aforesaid reason, the appellant took up his S.S.C. examination as a female. The appellant's parents were worried that even with the growth of age, he did not menstruate as a female. The appellant, however, had started feeling that he was a male. His voice started getting husky and hair began to sport on his chin and upper lip. The parents of the appellant then took him to the Lokhat Sarvajanik Medical Trust, Surat. The appellant was examined by a Panel of Doctors, consisting of Psychiatrist, Plastic Surgeon and Superintendent of Hospital. On his medical examination by a team of experts, he was given a certificate that he belongs to male gender. His case was diagnosed as one of Perineal Hypospadias, with left undescended testis. According to the doctor's certificate, the appellant is a full male genetically, endocrinologically and psychologically.
3. The doctors, however, advised that some minor operations were required to give a push to the natural process of the appellant's growth as a male. The appellant underwent three operations, through which the penis, hidden and underdeveloped, was dissected upto the root and its size was made adequate. After the operation, the appellant is a complete male.
4. According to the appellant, although he is a male and comes from a very poor family, as he is not recognized by society as a male, he is unable to earn his livelihood as a male. He was not in a position to obtain licence for rickshaw driving as a male. The appellant wanted to go abroad in Gulf countries for earning his livelihood, but because of his birth certificate to be a female, he could not get a passport as a male.
5. The parents of the appellant on his behalf made an application to the Taluka Development Officer for making necessary changes about the appellant's sex in the records and for issuance of a fresh birth certificate to him, after making corrections in the entry regarding his sex. The Taluka Development Officer sought opinion on his application from respondent No. 2, Commissioner, Health, Medical Services and Medical Education. On that opinion sought, the Additional Deputy Chief Registrar of Births and Deaths and Deputy Director (Statistics), Health Medical Services, Medical Education, Gandhinagar, sent advice to the District Registrar, Births and Deaths, and Chief District Medical Officer, District Panchayat, Bharuch. According to the advice, since sex of the appellant is changed by surgical operation, under Section 15 of the Act and Rule 12 of the Rules fram........