Birth registration can't be denied to children from invalid marriage: Himachal Pradesh High Court

The Himachal Pradesh High Court recently observed that children cannot be denied the registration of their births merely because they were born out of an unregistered or a legally invalid marriage.

Justice Jyotsna Rewal Dua held that the birth of children from a relationship that may not have the sanctity of law has to be considered independently of such a relationship.

“The relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section16(3) of the Hindu Marriage Act," the Court said in its October 17 order.

The Court added that such children are living beings and this needs to be acknowledged in law.

The Court was dealing with a plea filed by a woman on behalf of her three minor children. Their counsel informed the Court that the marriage between the parents of these children was solemnised in 2011, and that the couple had been living as husband and wife since then.

Notably, this marriage could not be registered as the husband was still legally married to his first wife, who was in poor health and had given her husband permission to enter into a second marriage.

In other words, the union was not viewed as legally valid since it violated Section 4(a) of the Special Marriage Act, 1954 which says that a person cannot enter into a marriage if he has another living spouse.

Since the marriage was not viewed as legally valid or registered, the State authorities declined to register the births of the children born out of this union as well in the Panchayat records, namely in the Birth Register and the Pariwar (family) Register

The Court, however, disagreed with the decision taken by the Panchayat authorities and said that the children of even invalid unions cannot be denied recognition in law.

The Bench added that this is also recognised in Section 16 (3) of the Hindu Marriage Act, which provides that though a marriage may be null and void, a child born from such marriage would still be treated as legitimate.

There was nothing in the Special Marriage Act or the Himachal Pradesh Panchayati Raj General Rules which barred the registration of names of children born out of an unregistered marriage in the birth or family records, the Court further observed.

Notably, the Court also highlighted that the the first wife of the husband/ father of the children had clearly stated that she had no objection to the registration of the names of her husband's children in the birth/ family records.

In view of this, the Court concluded that the names of the children in this case should be entered in the records of the Panchayat.

"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, allowed the plea and directed the State authorities to enter the names of the children in the Panchayat records in a time-bound manner.

Advocate Divya Raj Singh appeared for the petitioners.

Additional Advocates General Dalip K Sharma and Amandeep Sharma represented the State of Himachal Pradesh and other State authorities.

[Read Order]