IMPORTANT POINT
Legitimacy of child – Relationship between parents may not be sanctioned by law but birth of a child in such relationship has to be viewed independently of relationship of parents – Child born in such relationship is innocent and is entitled to all rights which are given to other children born in valid marriage.

JUDGMENT

Jyotsna Rewal Dua, J.—Three minor children aged 12, 9 and 5 years, respectively, have preferred this petition through their mother-natural guardian seeking direction to the respondents to enter their names in the Panchayat record i.e Birth Register and Pariwar Register. The prayer clause of the petition reads as follows:—

“It is therefore, respectfully prayed that this writ petition may very kindly be allowed, and an appropriate writ, order or direction, in the nature of mandamus directing the respondents to enter the name of the petitioners in the Panchayat record i.e birth register and Pariwar Register and all other documents which are maintained by the Panchayat, as far as the registration in the marriages register. Birth and Pariwar register etc., are maintained by the Gram Panchayat or any such or further order which this Hon’ble Court may deem fit may kindly be passed in the interest of justice.”

During hearing of the case, learned counsel for the petitioners submitted that he would confine his prayers only for seeking direction to the respondents to enter the names of the petitioners in the Birth Register and Pariwar Register of the concerned Panchayat. The matter has been heard accordingly.

2. The case set-up by the petitioners as urged by their learned counsel is that:-

2(i) Petitioners are offsprings of Sh. Balwinder Singh and Smt. Neeraj Bala. Marriage between the two was solemnized on 12.10.2011. Smt. Neeraj Bala and Balwinder have been living as husband and wife in the house owned by Sh. Malquiat Singh, father of Sh. Balwinder Singh. Petitioners’ father-Sh. Balwinder Singh was earlier married to Smt. Santosh Kumari, who was not keeping good health and suffered from several ailments. With consent of Smt. Santosh Kumari, Balwinder Singh solemnized second marriage with Smt. Neeraj Bala.

2(ii) In support of above factual assertions, petitioners have placed on record affidavits of Sh. Balwinder Singh and Smt. Neeraj Bala attested on 23.01.2023, by the Executive Magistrate Fatehpur, District Kangra, H.P.

2(iii) The grievance of the petitioners is that their repeated endeavors for incorporating their names in the Panchayat record i.e Birth Register and Pariwar Register have not proved fruitful. This has led them to institute this writ petition.

3. On 26.6.2023, while issuing notice to the respondents a Division Bench of this Court inter-alia directed as under:-

“The petitioner shall submit representation to 3rd respondent by Registered Post with Acknowledgment Due, which shall be received by the 3rd respondent and within a period of three weeks of its receipt, appropriate decision shall be taken by the 3rd respondent in that regard and communicated to the petitioner. List on 29.08.2023.”

Respondents No.1 to 3 alongwith their reply have placed on record an order, passed by them on 22.08.2023 pursuant to the above direction. According to the respondents, the petitioners’ names cannot be entered in the Birth as well as Pariwar Registers as marriage of Balwinder Singh-petitioners’ father with his second wife Smt. Neeraj Bala (petitioners’ mother) can not be registered in view of Section 4(a) of the Special Marriage Act 1954 read with Rule 21 of the H.P. Panchayati Raj General Rules 1997. For this reason, the names of petitioners-children of Sh. Balwinder Singh and Smt Neeraj Bala cannot be recorded in the Panchayat record.

The above ground has been pressed into service by the learned Additional Advocate General for opposing the prayer of the petitioners for incorporating their names in the Panchayat record.

4. Consideration

4(i) Applicable Legal Provisions may be noticed first:-

4(i)(a) Respondents have declined to enter the names of the petitioners in the concerned Panchayat’s record i.e Birth & Pariwar Registers on the ground that marriage of their parents cannot be registered in view of Section 4(a) of the Special Marriage Act 1954. This Section reads as under:-

“4. Conditions relating to solemnization of spe