Constitutional courts can exercise extraordinary jurisdiction under Article 226 to order corrections in birth registers to reflect a child's true parentage, prioritizing the child's fundamental right to identity over procedural constraints when the law fails to address legitimate human circumstances.

JUDGMENT :

P.V. KUNHIKRISHNAN, J.

1. This Writ Petition presents a sad story of the mental trauma faced by a girl child and her parents due to the rigid procedure and statutory rules, which are the law of the land to be followed by the citizens. A child was born to the 1^st petitioner in In Vitro Fertilisation (IVF) treatment, for which sperm was donated by the 2^nd petitioner, her living partner at that time. There was some misunderstanding between the petitioners at that time, and hence the father's name of that child was not mentioned in the birth register. Subsequently, the 2^nd petitioner married the 1^st petitioner. A second child was also born out of the relationship between the petitioners, in which the father’s name is correctly shown as the 2^nd petitioner. But in the birth register of the first child, the father's name is still blank. Now the petitioners, who are the parents of the first child, also want to record the father’s name of the first child in the birth register as 2^nd petitioner. The Registrar of Birth refused the same, not because the paternity is disputed, but because there are no provisions enabling him to do so. The question before this Court is “stark”. Can a technicality arising from an adult conflict arising at the time of birth of the child lead to denying a child the fundamental right to identity guaranteed under Article 21 of the Constitution of India? Can a Birth Register become a permanent scar on a citizen’s record, which is the very first public document in his life? A blank space in the birth register can wound deeper than words to the first child, especially when the second child’s father’s name is correctly shown. I considered the psychological trauma of a child born to an unwed mother, from the angle of the character “Karna” in the ancient epic “Mahabharata.” (See XXXX and Another v. Registrar of Births and Deaths, Pathanamthitta Municipality,  2022 (5) KHC 72). Here, in the present case, both parents want to declare to the world that the second petitioner is the child's father, but the law does not permit it. Viewing from another angle to the story of “Mahabharata”, it can be said that “Karna” is not alone; his parents also want to declare his paternity to the world. Can the law be a barrier in front of these loving parents and the first child whose father’s name is not in the Birth Register? Mr Bumble, a character in Charles Dickens’s novel OLIVER TWIST, said in a courtroom that “law is an ass”, of course, in connection with that story. The novel above by Charles Dickens was published in 1838, which means it is about 2 centuries old. Even now, some legal provisions in our country are like an ass. But in such situations, it is the duty of the constitutional court to interpret such laws with a human touch. I will narrate the facts in this case in detail.

2. The 1^st petitioner and the 2^nd petitioner were working in Dubai, and they fell in love with each other. Due to the obstruction by the parents of the 2nd petitioner, he decided to live with the 1^st petitioner. But for abundant caution not to conceive before marriage, they had tried contraceptive methods. After some time, the 1^st petitioner wanted to have a child, and due to issues in the 2^nd petitioner's family, she decided to become a single mother, a mother with a dependent child who is unmarried. The 1^st petitioner started treatment for the purpose of In Vitro Fertilisation (IVF) for which sperm was donated by the 2^nd petitioner, her living partner and her future husband.

3. It is submitted that the IVF treatment was kept secret from the parents of both the petitioners. The 1^st petitioner beca