Birth registration can’t be denied to children from invalid marriage: Himachal Pradesh High Court
The Himachal Pradesh High Court, in a recent case, held that children could not be deprived of their birth certificates for the reason that the marriage which led to their births was either not registered or declared void under the law.
Justice Jyotsna Rewal Dua opined that children born out of the relationship, though maybe irregular or may not have the stamp of law governing legal marriages, must be dealt with separately.
Such a relationship may not be recognized by the law, but the child’s birth in such a relationship has to be segregated from the relationship the parents have. A child born in such a relationship is clean, and the child is a deserving candidate of all rights that are accorded to other children in a valid marriage. This is the crux of the amendment in Section 16 (3) of the Hindu Marriage Act,” the Court said in the order made on October 17.
It said that such children are living beings, which must be recognized in law.
The Court was handling a petition by a woman in support of her three minor children. According to their legal advice, the Court was told that the marriage of the parents of these children was contracted in the year 2011 and that they had cohabited as a husband and wife since that time.
Most importantly, this marriage could not be registered as the man was still legally married to the first wife, who was sick, and she agreed that her husband should inherit another wife.
In other words, the union was not legally recognized because it violated Section 4(a) of the Special Marriage Act, 1954, which states that a person cannot marry somebody if he has another living spouse.
Because the marriage was considered by the law invalid and not officially registered, the State authorities did not register the births of children resulting from this ‘union ‘ in the Panchayat records, the Birth Register, or the Pariwar Register.
The Court, however, did not support this decision given by the Panchayat authorities and further remarked that children of even an invalid marriage cannot be treated as unheard in law.
The Bench further pointed out that this is also admitted in Section 16 (3) of the Hindu Marriage Act, according to which, while a marriage may be declared void, the child born of such marriage shall be deemed to be legitimate.
That is why the Court noted further that there was no law or rule under the Special Marriage Act or the Himachal Pradesh Panchayati Raj General Rules that prohibited the entry of the names of children born out of an unregistered marriage in the records of births or family.
Worth noting, the Court also pointed out that the first wife of the husband/ father of the children had clearly stated that she had no objection to the registration of her husband’s children’s names in birth/ family records.
Based on this, the Court noted that the names of the children in this case were rightly recorded in the panchayat record.
”The objection of the respondents that since the marriage between the parents of the petitioners cannot be registered in view of provisions of Section 4(a) of the Special Marriage Act and on that count names of the petitioners cannot be entered in the Panchayat Record is clearly misconceived and violates the import of Section 16(1) of the Hindu Marriage Act,” the Court said.
The Court, therefore, accepted the plea and took the State authorities to task and ordered their timely enrolment in the Panchayat records.
Advocate Divya Raj Singh represented the petitioners.
The Additional Advocates General Dalip K Sharma and Amandeep Sharma, as well as the counsel for Himachal Pradesh and other state authorities, also pleaded.
