By Himabindu Lingala

The High Court of Himachal Pradesh addressed a writ petition filed by three minor children through their mother. The petitioners’ sought to have their names registered in the Panchayat record and were refused by the respondents. The respondents have objected to this request citing S.4(a) of the Special Marriage Act as basis for their refusal to register the petitioners’ names in the Birth registry.

‘X’ and ‘Y’ were married, ‘Y’ was the first wife who was in poor health. With ‘Y’s permission, ‘X’ solemnised a second marriage with ‘Z’ while the first wife was still alive, and continued to live as husband and wife. However, under S.4 (a) of the Special Marriage Act, the second marriage is considered null and void as Y (first wife) was still alive.

The Himachal Pradesh High Court held that the respondents’ objection to enter the petitioners’ name in the birth register on the basis that the parents’ marriage is void violates the pith of S.16 (1) of the Hindu Marriage Act (HMA). The court asserted that the children are living beings independent from their parents and hence cannot be denied to have their names registered in the birth register. 

The High Court referred to Revanasiddappa v. Mallikarjun, where the judgement reasserted that children born from void or voidable marriages were legitimate under S.16 of the Hindu Marriage Act. Additionally, the court cited Union of India v. V.R. Tripathi, where in it was comprehensively explained the dynamics of S.16 (1) and S.16 (3) of the Hindu marriage act, it was held that if under S.11 of Hindu Marriage Act, a marriage is null and void, the child born from such marriage is still considered legitimate.  S.16 (1) of HMA expresses ‘a child born out of a null or void marriage is considered legitimate as they would have been legitimate if the marriage had been valid’. S.16 (3) of HMA states and restricts the child’s right to property to only that of their parents if they were born out of a null or void marriage. The birth of a child is independent of the relationship of the parents. A child out of such marriage is entitled to the same rights given to children born in a valid marriage. The High Court referred to the cases above to explain the rights of children born out of void and null.

The High Court of Himachal Pradesh stated that Birth registration cannot be denied to children born in null or void marriages. The writ petition was allowed. The respondents were directed to enter the petitioners’ names into the birth registry.  

Case: Navya and others v. State of H.P.

Citation: 2024 SCC OnLine HP 5658

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