• The Himachal Pradesh High Court has ruled that children born out of void or voidable marriages cannot be denied registration of their births in the panchayat records, paving the way for further recognition of their rights.
• A single-judge bench of Justice Jyotsna Rewal Dua was acting on a petition filed by three minor children, aged 12, nine, and five, through their mother, who wanted their names added to the panchayat record. The record includes a birth register and a “pariwar (family) register”, among other documents maintained by the village governing body.
• In its 17 October ruling, the court said, “The relationship between the parents may not be sanctioned by law but the birth of a child in such a 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 a valid marriage.”

Why did the petitioners move the HC?

• In the present case, the children’s parents solemnised their marriage in 2011 while the father was still legally married to his first wife. Their father had married the second time because his first wife wasn’t in good health but said he had her consent to do so.
• However, the main grievance of the petitioners was that the repeated attempts to have the children’s names included in the panchayat record weren’t successful.
• The Himachal Pradesh government contended that Section 4(a) of the Special Marriage Act, 1954, read with Rule 21 of the HP Panchayati Raj General Rules 1997, did not allow for this. Section 4(a) specifies that neither party to the marriage can have a living spouse at the time of marriage as a prerequisite for solemnisation of a marriage under the SMA, while Rule 21 deals with the pariwar register and registration of births, deaths, and marriages.

What is a pariwar registrar?

• Under Rule 21, after the government establishes a sabha by notification under Section 3(1), a pariwar register, which contains the names and details of all persons who are residents of the village in that area, should be prepared for every gram sabha.
• The provision adds that the register should be prepared by the panchayat secretary and verified by the panchayat inspector of the concerned block. In its 17 October ruling, the court said, “There is nothing in this rule debarring entering the name of the children from the second marriage.”
• It added that Rule 21(5) of the 1997 rules, in fact, says that the gram panchayat secretary is required to include the registration of births and deaths in accordance with the provisions of the Registration of Births and Deaths Act, 1969.

What does the 1969 Act say?

• Section 8 of the Registration of Births and Deaths Act outlines the duties of particular persons, such as the head of the household or nearest relative, to register the birth or death and provide details to the concerned authorities, orally or in writing.
• The concerned persons also include authorised medical officers or their representatives in a hospital, health centre, maternity or nursing home or other similar institution, heads of the household in residential setups and jailers-in-charge for births and deaths in jail, among others.
• Section 7 mandates that this information be given to a state-appointed registrar under whose jurisdiction the relevant area falls.

But first, what is an illegitimate or invalid marriage?

• There are certain conditions for the solemnisation of a valid Hindu marriage listed under Section 5 of the Hindu Marriage Act, 1955.
• The first is that neither party can have a living spouse at the time of the marriage. Second, both parties should be capable of giving “valid consent” for the marriage. They cannot be unsound of mind or suffer from a disorder that renders them unfit for procreation or marriage, such as insanity.
• Thirdly, the man must be a minimum of 21 years of age, while the woman must be a major, that is, 18 years or older.
• The act also prohibits marriages with lineal ascendants, such as parents or grandparents, among other relatives, unless customs allow it, or between those people who have common ancestors traced back to five generations on the father’s side and three generations on the mother’s side.
• It further defines void marriages—invalid ab initio, or from their very inception—and voidable marriages, that is, those that contravene conditions under Section 5 and are made invalid, through a decree, at the behest of one of the parties. Under Section 11, when there is a living spouse or the parties are closely related, the marriages are void and do not exist under the law.
• Voidable marriages, Section 12 says, can be annulled on grounds such as non-consummation of the marriage due to the partner’s impotence, incapacity to consent or consent being obtained by fraud or force, among others.
• Simply put, invalid marriages refer to both voidable and void marriages.

What happens to children born of such marriages?

• Section 16 of the HMA confers legitimacy on children born out of invalid marriages. It says, “Any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this act and whether or not the marriage is held to be void otherwise than on a petition under this act,”

How have courts interpreted this provision?

• In Jinia Keotin vs Kumar Sitaram Manjhi (2003), a two-judge bench of the Supreme Court ruled that children from void or illegal marriages, simply because they are safeguarded by Section 16, should not be treated on par with children born from lawful marriages, for inheritance of the parents’ ancestral property.
• Years later, the apex court took a more benevolent view in its 2011 ruling in Revanasiddappa vs. Mallikarjun, where a two-judge bench held that illegitimate children are entitled to all rights in the parent’s property, both self-acquired and ancestral. In doing so, it said that “with changed social norms of legitimacy in every society, what was illegitimate in the past may be legitimate today”.
• Subsequently, a three-judge bench led by Chief Justice D.Y. Chandrachud on 1 September 2023, ruled that children born out of void or voidable marriages can claim a share in their family property. However, the bench also clarified that such children cannot claim their right to the ancestral property of anyone else in the Hindu Undivided Family (HUF), save their parents.
• The foundation for the SC’s 2023 ruling was laid down by the top court in a 2018 two-judge bench judgment. In Union of India vs. VR Tripathi, the court said that a child born from a “null and void marriage” is legitimate.
• The legitimacy of such a child is matter of public policy so as to protect the child born from null and void marriage suffering the consequences of illegitimacy. Though a marriage may be null & void but a child born from such marriage is nonetheless treated as legitimate by subsection (1) of Section 16,” the court had said in that case.
• The court also clarified that such a child can only have a right in the parents’ property and not the property of any other relatives.

What did the court decide now?

• In the 17 October judgment, the Himachal HC, relying on the law laid down by the Supreme Court in a series of decisions, said, “The concept of legitimacy stems from social consensus” which is shaped by various social groups. It pointed out that Hindu law is not static and has evolved over time.
• It said that the HMA is a “beneficial legislation” and has to be interpreted in a way that advances the objectives of the law and brings about social reform, highlighting that the preamble of the Constitution focuses on equality of status, opportunity and dignity.
• In the present case, the court said that it was undisputed that the children were born of the second marriage, solemnised while the first spouse was alive.
• Allowing the plea, the court said, The petitioners are living beings. The fact that they are there, needs to be acknowledged in law. Hence their names are required to be entered in the record of [the] concerned panchayat within five weeks from the date of the order.