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2025 Supreme(Online)(HP) 8833
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
, J
Three minor children – Appellant
Versus
Sh. Balwinder Singh and Smt. Neeraj Bala – Respondent
Writ Petition |
Children born from void marriages are deemed legitimate under S.16 of the Hindu Marriage Act, granting them rights to recognition irrespective of the marriage status of their parents.
Headnote:(A) Special Marriage Act, 1954 - Section 4(a) - H.P. Panchayati Raj General Rules, 1997 - Rule 21 - Registration of birth - Petitioners, children from a second marriage, sought entry of their names in the Birth and Pariwar Registers. Respondents denied based on their parents' unregistered second marriage. Court found this misapplied law, reiterating S.16(1) of the Hindu Marriage Act confers legitimacy. (Paras 4(i)(a), 4(iv)).
(B) Family Law - Legitimacy - Children born to a void marriage are deemed legitimate under S.16(1) of the Hindu Marriage Act. They are entitled to recognition irrespective of parents' marriage status. Court stressed children’s rights to their identity and status in law. (Paras 4(i)(d), 5.)
(C) Writ Jurisdiction - Court’s power of mandamus to direct the respondents to enter names in public registries when lawful ingredients are met, emphasizing justice and legal recognition. (Para 5.)
Facts of the case:
Petitioners, minors aged 12, 9, and 5, are children of Balwinder Singh and Smt. Neeraj Bala; they sought their names in Panchayat records after being denied due to their parents' second marriage status.
Findings of Court:
Court found no legal bar to naming petitioners in the records by virtue on their legitimacy per S.16 of the Hindu Marriage Act.
Issues: Whether the marriage of the petitioners' parents affects the legitimacy of their birth in the records? Whether S.4(a) of the Special Marriage Act applies to the registration of their names?
Ratio Decidendi: The court held the children's right to identity and recognition is paramount and not negated by their parents' marriage status, affirming rights laid under S.16(1) of the Hindu Marriage Act.
Result: Writ petition allowed; names must be entered into the records.
1. 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 along with 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) cannot be registered in view of S.4(a) of the Special Marriage Act 1954 read with R.21 of the H.P. Panchayati Raj General R.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 and Pariwar Registers on the ground that marriage of their parents cannot be registered in view of S.4(a) of the Special Marriage Act, 1954 . This Section reads as under: -
"4. Conditions relating to solemnization of special marriages.? Notwithstanding anyt
