Objecting To Registering Names Of Children Born Out Of A Void/Voidable Marriage In Birth Register Violative U/s. 16(1) HMA: Himachal Pradesh HC
The Himachal Pradesh High Court has held that objecting to registering the names of children born out of a void/voidable marriage in a birth register is violative of Section 16(1) of the Hindu Marriage Act.
The Court allowed the petition filed by three children seeking direction to the respondents to enter their names in the Panchayat record i.e Birth Register and Pariwar Register. The Court found the respondents' objection "misconceived" and directed that the names of the petitioners be entered in the Birth and Pariwar Registers, aligning with Section 16 of the Hindu Marriage Act (HMA).
A Single Bench of Justice Jyotsna Rewal Dua observed, “The petitioners are living beings. The fact that they are there, needs to be acknowledged in law. Hence their names are required to be entered in the record of concerned Panchayat. Entering the names of the petitioners in the Panchayat Record i.e. would be in consonance with the provisions of Section 16 of the Hindu Marriage Act keeping in view the law laid down by the Hon’ble Apex Court. 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.”
Advocate Divya Raj Singh appeared for the petitioners, while Additional Advocate General Dalip K. Sharma represented the respondents.
The petitioners submitted that at the time when the marriage between their parents was solemnized, their father’s first wife was already there. It was claimed that the first wife consented to the second marriage as she was allegedly unwell, the Panchayat refused to enter the names of the petitioners in its records, arguing that the second marriage could not be registered, as it violated Section 4(a) of the Special Marriage Act, 1954 (SMA), which bars marriage if either party has a living spouse.
The High Court reiterated the Supreme Court’s decision in Union of India v. V.R. Tripathi (2019) wherein while interpreting and elaborating upon the interplay of Sections 16 (1) & 16(3)of the Hindu Marriage Act (HMA), it was held that a child born from a null and void marriage was legitimate. “The legitimacy of such a child, is matter of public policy so as to protect the child born from null and void marriage suffering the consequences of illegitimacy. Though a marriage may be null & void but a child born from such marriage is nonetheless treated as legitimate by subsection (1) of Section 16. As per Section 16(3), a child who is born from the marriage which is null and void, will have right in the property though only of parents and none other than the parents,” it was held.
Similarly, the Apex Court in Revanasiddappa v. Mallikarjun (2011) held, “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.”
Consequently, the Court explained Rule 21 of the H.P. Panchayati Raj General Rules, 1997 (the Rules), which stated that the Panchayat was responsible for registering births and deaths. The Bench stated that the Panchayat was bound to register the births under the Rules and that “there is nothing in this Rule debarring entering the name of children from a second marriage.”
Accordingly, the High Court allowed the petition.
Cause Title: N & Ors. v. State of H.P. & Ors. (Neutral Citation: 2024:HHC:10259)
Appearance:
Petitioners: Advocate Divya Raj Singh
Respondents: Additional Advocates General Dalip K. Sharma and Amandeep Sharma
