Aarohi Girish Dhumale
On October 17, 2024, the Himachal Pradesh High Court held that the children born out of an unregistered or a legally invalid marriage should not be denied birth registration.
This case was heard by Justice Jyotsna Rewal Dua.
“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 held.
The Court emphasized that these children are living beings, and the law must recognize this fact.
This judgment was a result of a plea filed by a woman on behalf of her three minor children. Their lawyer informed the Court that the parents’ marriage took place in 2011, and they had been living together as husband and wife since then.
The marriage could not be registered by the reason of the husband still being legally married to his first wife. She was in poor health but had given her consent to his second marriage.
Their union was considered legally invalid because it violated Section 4(a) of the Special Marriage Act, 1954, which states that a person cannot enter into marriage if he has another living spouse.
Since the marriage was invalid and was not registered, the state authorities refused to record the births of the children from this union in the Panchayat records, including the Birth Register and the Family Register (Pariwar Register).
The Court, however, disagreed with the decision made by the Panchayat authorities, stating that children from invalid unions cannot be denied legal recognition.
The Bench pointed out that this principle is also seen in Section 16(3) of the Hindu Marriage Act, which says that even if a marriage is null and void, a child born from that marriage is still considered to be legitimate.
The Court also noted that neither the Special Marriage Act nor the Himachal Pradesh Panchayati Raj General Rules contained any provisions that would prevent the registration of children born from an unregistered marriage in the birth or family records.
The Court emphasized that the first wife of the children’s father had explicitly stated she had no objection to registering these children’s names in the birth and family records.
Taking all these factors into consideration, the Court concluded that the children’s names should be included in the Panchayat records.
Case Name: X v. State of H.P. and others
Case Number: CWP No. 2840 of 2023
Bench: Justice Jyotsna Rewal Dua
Click here to access the order dated 17.10.2024