Kerala High Court
Zahhad vs State Of Kerala on 2 June, 2025
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
WP(C) NO. 23763 OF 2023
PETITIONER/S:
1 ZAHHAD,
AGED 23 YEARS
C/O. ASHITHA,11/412B NEAR HEALTH CENTRE, KUNDAYITHODE,
CHERUVANNUR, KOZHIKODE, KERALA, PIN - 673005
2 ZIYA PAVAL,
AGED 22 YEARS
ZIYA PAVAL,, C/O DEEPA RANI, 1234 SIVAS FLAT, EAST HILL
APARTMENT WEST HILL, KOZHIKODE, KERALA, PIN - 673005
3 ZABIYA ZAHHAD,
MINOR AGED 5 MONTHS, DATE OF BIRTH- 08/02/2023,
REPRESENTED BY ZAHHAD (BIOLOGICAL MOTHER), C/O
ASHITHA,11/412B NEAR HEALTH CENTRE, KUNDAYITHODE,
CHERUVANNUR, KOZHIKODE, KERALA, PIN - 673005
BY ADVS.
PADMA LAKSHMI
PRASHANT PADMANABHAN(K/1685/1999)
MEENAKSHI K.B.(K/003181/2024)
MARIYAMMA A.K.(K/104/1990)
IPSITA OJAL(K/001006/2018)
POOJA UNNIKRISHNAN(K/2789/2022)
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 CHIEF REGISTRAR,
BIRTH AND DEATH REGISTRATION DEPARTMENT, SWARAJ BHAVAN,
THIRUVANANTHAPURAM, PIN - 695003
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WP(C) No.23763/2023 2
3 PRINCIPLE DIRECTOR,
5 TH FLOOR, SWARAJ BHAVAN, LOCAL SELF DEPARTMENT
NANDANKODE, THIRUVANAMTHAPURAM, PIN - 695003
4 DIRECTOR OF SOCIAL JUSTICE DEPARTMENT,
VIKAS BHAVAN, 5 TH FLOOR, THIRUVANANTHAPURAM, PIN -
695033
5 SECRETARY,
KOZHIKODE CORPORATION, CORPORATION OFFICE, CALICUT
BEACH, KOZHIKODE, KERALA STATE, PIN - 673032
6 KOZHIKODE CORPORATION,
REPRESENTED BY SECRETARY , CORPORATION OFFICE CALICUT
BEACH KOZHIKODE, KERALA STATE, PIN - 673032
BY ADV SHRI.V.KRISHNA MENON, SC, KOZHIKODE MUNICIPAL
CORPORATION FOR R5 AND R6.
SRI. V. MANU, SPL. GOVT.PLEADER R1 TO R4
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.05.2025 THE COURT ON 02.06.2025 DELIVERED THE FOLLOWING:
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WP(C) No.23763/2023 3
JUDGMENT
In this case, an interesting, rare and exceptional issue has
come up, that relates to the rights of transgender persons touching
upon the necessity to safeguard their interests, when it comes to the
question of the identity of their children who are born as normal
persons. The essential issue to be dealt with in this writ petition
pertains to the furnishing of the details of parents and their identities
in terms of their gender, while issuing a birth certificate to a child
born to the transgender parents.
2. The brief facts which are necessary to decide the issue are
as follows: The 1st petitioner was born as a female and as per the
Secondary School Leaving Certificate, the gender of the 1 st petitioner
was noted as female. Later the 1st petitioner recognised herself as a
male, as an inclination to be a male developed in her mind. Based on
such desire, she had taken a decision to lead a life of a male and
accordingly, she changed the name by adopting a male name. The
transgender identity card issued by the District Magistrate as
contemplated under the provisions of the Transgender Persons
(Protection of Rights) Act, 2019 (hereinafter referred to as
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'Transgender Persons Act') was also obtained in the form of Ext.P1.
3. The 2nd petitioner was born as a male and in the
Secondary School Leaving Certificate his gender was shown as male.
Later, he identified himself as a female just the way the 1 st petitioner
felt, and accordingly he decided to live as a female. Therefore, he
adopted the name of a female. He also obtained a transgender
identity card from the competent authority under the Transgender
Persons Act. Exhibits P1 and P2 are the transgender identity cards of
the 1st and 2nd petitioners, respectively. Both of them have obtained
Aadhar cards in their favour, wherein, the gender of the parties is
shown as male and female respectively. Exhibits P4 and P6 are the
Aadhar cards of the petitioners 1 and 2, whereas Exhibits P3 and P5
are the Secondary School Leaving Certificates showing their gender
at the time of their birth.
4. The 1st and 2nd petitioners started to live together and during
this period, the 1st petitioner (trans-man) became pregnant and
delivered a baby boy on 08.02.2023 at the Medical College Hospital,
Kozhikode. The 3rd petitioner is the child born to the petitioners and
the child is not a transgender child. Upon the birth of the child, the
hospital authorities reported the birth to the 5th respondent, the
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Secretary to Kozhikode Corporation, and the details of the petitioners
and the birth of the 3rd petitioner were incorporated in the Register
maintained by the 5th respondent under the provisions of the
Registration of Births and Deaths Act, 1969 (hereinafter referred to
as 'the Act 1969') and the rules framed thereunder. In the details
furnished, the 1st petitioner was shown as the mother of the 3 rd
petitioner and the 2nd petitioner was shown as the father. Exhibit P7
is the birth certificate of the 3 rd petitioner, issued by Kozhikode
Corporation on 17.02.2023, which contains the details as referred to
above.
5. The grievance highlighted by the petitioners is follows:
Now the 1st petitioner, who is described as the mother of the 3 rd
petitioner in Ext.P7, is leading the life of a male, with an identity of a
male and the 2nd petitioner, who is described as the father of the 3 rd
petitioner, is leading a life of a female, with an identity of a female,
as revealed from the records mentioned above. Their status as
transgenders were also mentioned in the said certificate. Therefore,
the apprehension of the petitioners is that, the gender identities as
described in Ext.P7 birth certificate, being contrary to the gender
status in life adopted by the parties, are likely to create serious
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problems and prejudices in the life of the 3 rd petitioner, when it
comes to the question of education, employment or other profession
etc.
6. Therefore, the petitioners have approached the Kozhikode
Corporation to issue a fresh certificate of birth of the 3 rd petitioner by
describing the petitioners 1 and 2 as the parents of the 3 rd petitioner,
instead of mentioning the 1st petitioner as the father and the 2 nd
petitioner as the mother of the 3 rd petitioner, and without mentioning
their gender. The 5th respondent refused to entertain the said request
by pointing out that, as per the provisions contained in the
Registration of Births and Deaths Act, 1969 and also the Kerala
Registration of Births and Deaths Rules, 1999, the 5th respondent can
issue a certificate only in a prescribed format viz., Form 5, which
contains a column for mother and father where the details are to be
supplied. According to them, there are no other statutory provisions
that enable them to issue a birth certificate otherwise than
contemplated under the Rules. Therefore, the request made by the
petitioners was not entertained, and it was in these circumstances,
the petitioners have approached this Court seeking the following
reliefs:
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"i) Declare that form 1 birth report form of the Registration of Births
& Deaths Act, 1999 and Rule 5 of the Kerala Registration of Births
and Deaths Rules, 1999 be read down so as to include all voluntary
changes to name and gender identity in one's birth certificate;
ii) Declare that form 3 birth report form of the Registration of Births
& Deaths Act, 1999 and Rule 5 of the Kerala Registration of Births
and Deaths Rules, 1999 be read down so as to include all voluntary
changes to name and gender identity in one's birth certificate;
iii) Declare that form 5 birth report form of the Registration of Births
& Deaths Act, 1999 and Rule 8 of the Kerala Registration of Births
and Deaths Rules, 1999 be read down so as to include all voluntary
changes to name and gender identity in one's birth certificate
iv) Declare that form 7 birth report form of the Registration of Births
& Deaths Act, 1999 and Rule 12 of the Kerala Registration of Births
and Deaths Rules, 1999 be read down so as to include all voluntary
changes to name and gender identity in one's birth certificate."
7. Counter affidavits were submitted by respondents 5 and
6, and a statement and an additional statement were filed by
respondents 2 and 3. In the statement submitted by the respondents
2 and 3, they denied the right of the petitioners to seek the reliefs in
the writ petition, as the same are not supported by any statutory
provision. Besides, it was also pointed out that, as far as the issue is
concerned, the same relates to the birth certificate of the 3 rd
petitioner, who is not a transgender person and therefore the
provisions of the Transgender Persons Act cannot be made
applicable. As far as the 5th and 6th respondents are concerned, it
was contended that they cannot issue a birth certificate in any form
other than mentioned in the Kerala Registration of Births and Deaths
Rules,1999 particularly in Form No.5. In such circumstances, the
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respondents have sought for dismissal of the writ petition.
8. I have heard Sri. Prasant Padmanabhan, assisted by
Smt.Padma Lakshmi, the learned counsels for the petitioners,
Sri. V.Manu, the learned Spl.Govt.Pleader, for the respondents 1 to 4
and Sri. V. Krishna Menon, the learned Standing Counsel for the
respondents 5 and 6.
9. The crucial question that arises for consideration is
whether is it possible for the 5th respondent to issue birth certificate
to the 3rd petitioner by simply describing the petitioners 1 and 2 as
the parents of the 3rd petitioner, instead of showing them as mother
and father respectively. Before examining the aforesaid question, it is
necessary to go through the various statutory provisions and the
evolution of law regarding the rights of transgender persons.
10. When it comes to the question of the registration of birth,
it is governed by the provisions of the Registration of Births and
Deaths Act, 1969 and also the rules framed thereunder viz. The
Kerala Registration of Births and Deaths Rules, 1999. As per the
provisions of the Registration of Births and Deaths Act, 1969 (in
short 'the Act, 1969'), it has been made mandatory to furnish the
information regarding the deaths and births within a specified time
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before the authority concerned. Section 8 of the Act provides as
follows:
"8. Persons required to register births and deaths.--(1) It shall be
the duty of the persons specified below to give or cause to be given,
either orally or in writing, according to the best of their knowledge
and belief, within such time as may be prescribed, information to the
Registrar of the several particulars required to be entered in the
forms prescribed by the State Government under sub-section (1) of
section 16,--
(a) in respect of births and deaths in a house, whether
residential or non-residential, not being any place referred
to in clauses (b) to (e) the head of the house or, in case
more than one household live in the house, the head of
the household, the head being the person, who is so
recognised by the house or the household, and if he is not
present in the house at any time during the period within
which the birth or death has to be reported, the nearest
relative of the head present in the house, and in the
absence of any such person, the oldest adult male person
present therein during the said period;
(b) in respect of births and deaths in a hospital, health
centre, maternity or nursing home or other like institution,
the medical officer in charge or any person authorised by
him in this behalf;
(c) in respect of births and deaths in a jail, the jailor in
charge;
(d) in respect of births and deaths in a choultry, chattram,
hostel, dharmasala, boarding-house, lodging-house,
tavern, barrack, toddy shop or place of public resort, the
person in charge thereof;
(e) in respect of any new-born child or dead body found
deserted in a public place, the headman or other
corresponding officer of the village in the case of a village
and the officer in charge of the local police station
elsewhere:
Provided that any person who finds such child or dead body, or in
whose charge such child or dead body may be placed, shall notify
such fact to the headman or officer aforesaid;
(f) in any other place, such person as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), the
State Government, having regard to the conditions obtaining in a
registration division, may by order require that for such period as
may be specified in the order, any person specified by the State
Government by designation in this behalf, shall give or cause to be
given information regarding births and deaths in a house referred
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to in clause (a) of sub-section (1) instead of the persons specified
in that clause."
Section 12 of the said Act provides that:
"12. Extracts of registration entries to be given to
informant.--The Registrar shall, as soon as the
registration of a birth or death has been completed, give,
free of charge, to the person who gives information under
section 8 or section 9 and extract of the prescribed
particulars under his hand from the register relating to
such birth or death."
Section 15 of the Act deals with the correction or cancellation of
entry in the register of births and deaths, if it is shown that an entry
therein is erroneous in form or substance, or has been fraudulently
or improperly made. Section 16 of the Act provides for the obligation
of the Registrars to maintain the register of births and deaths in the
prescribed form.
11. The Kerala Registration of Births and Deaths Rules, 1999
was enacted by the State Government, which provides for various
forms in which the documents, registers, certificates relating to the
deaths and births are to be maintained. Rule 5 provides that the
information shall be furnished in form Nos.1,2 and 3 for the
registration of a birth and death, and still birth respectively. Rule
8(1) reads as follows:
"Extracts of registration entries to be given under
section 12.--(1) The extracts of particulars from the
register relating to births or deaths to be given to an
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informant under section 12 shall be in Form No. 5 or Form
No. 6, as the case may be."
Form 5 is the birth certificate which is extracted below:
കേരള സർക്കാർ
GOVERNMENT OF KERALA
പഞ്ചായത്ത്/നഗരകാര്യ വകുപ്പ്
DEPARTMENT OF PANCHAYATS/URBAN AFFAIRS
സർട്ടിഫിക്കറ്റ് നൽകുന്ന തദ്ദേശ സ്ഥാപനത്തിന്റെ പേര് .............
Name of local body issuing certificate.........................................
ജനന സർട്ടിഫിക്കറ്റ്
Birth Certificate
(1969-ലെ ജനന-മരണ രജിസ്ട്രേഷൻ ആകി്ട ലെ 12/17 വകുപ്പും 1999-ലെ കേരള
ജനനമരണ രജിസ്ട്രേഷൻ ചട്ടങ്ങളിലെ 8/13-ാം ചട്ടവും അനുസരിച്ച്
നൽകുന്നത്.)
(Issued under Section 12/17 of the Registration of Births and Deaths
Acts, 1969 and Rule 8/13 of the Kerala Registration of Births and
Deaths Rules, 1999.)
താഴെ പറയുന്ന വിവരങ്ങൾ കേരള സംസ്ഥാനത്തിലെ ........................ ജില്ലയിലെ
...........................താലൂക്കിലെ ......................... . ലെ (തദ്ദേശ സ്ഥാപനം) അസ്സൽ ജനന
രജിസ്റ്ററിൽ നിന്ന് എടുത്തിട്ടുള്ളവയാണെന്ന് സാക്ഷ്യപ്പെടുത്തുന്നു.
This is to certify that the following information has been taken from the original record of birth which
is the register for (local areas local body)....................... of Taluk ............................. of
District ............................... of State Kerala.
പേര് /Name .................................................... ആൺ/പെൺ/Sex ...........................ജനന
തിയതിDate of Birth..................................... ജനന സ്ഥലം/Place Of Birth......................................
മാതാവിൻറെ പേര്/ Name of Mother,......................... പിതാവിൻറെ പേര്/ Name of
Father ................................
കുട്ടിയുടെ ജനന സമയത്തു മാതാപിതാക്കളുടെ മേൽവിലാസം
മാതാപിതാക്കളുടെ സ്ഥിര മേൽവിലാസം
Address of the Parents at the time of birth of the child Permanent address of
parents
..................................................................... ............................................................
ജിസ്ട്രേഷൻ നമ്പർ Registration No.............................
രെ രെജിസ്ട്രേഷൻ
തീയതിDate of Registration...........................
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അഭിപ്രായകുറിപ്പു / Remarks (if any)
നൽകുന്ന തീയതി / Date of issue
നൽകുന്ന അധികാരിയുടെ ഒപ്പ്
/Signature of the issuing authority
നൽകുന്ന അധികാരിയുടെ മേൽവിലാസം/Address
of the issuing authority
സീൽ/SEAL
"Ensure Registration of every birth and death"
"ഓരോ ജനനവും മരണവും രജിസ്റ്റർ ചെയ്തുവെന്ന് ഉറപ്പുവരുത്തുക." "
It is to be noted that Form 5 contains specific columns for the names
of mother and father.
12. When it comes to the question of rights of transgender
persons, the first aspect to be noticed, is the legal recognition before
law, declared by the Hon'ble Supreme Court in National Legal
Services Authority v. Union of India and Others [(2014) 5 SCC
438] wherein, after elaborately discussing the issue with specific
reference to the Universal Declaration of Human Rights 1948, it was
categorically held that Hijras/Transgender Persons are to be granted
legal recognition and protection. The relevant observations in para
74,75, 76 and 77 read as follows:
74. Article 21, as already indicated, protects one's right of self-
determination of the gender to which a person belongs.
Determination of gender to which a person belongs is to be
decided by the person concerned. In other words, gender identity
is integral to the dignity of an individual and is at the core of
"personal autonomy" and "self-determination". Hijras/Eunuchs,
therefore, have to be considered as Third Gender, over and above
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binary genders under our Constitution and the laws.
75. Articles 14, 15, 16, 19 and 21, above discussion, would
indicate, do not exclude Hijras/Transgenders from its ambit, but
Indian law on the whole recognize the paradigm of binary genders
of male and female, based on one's biological sex. As already
indicated, we cannot accept the Corbett principle of "Biological
Test", rather we prefer to follow the psyche of the person in
determining sex and gender and prefer the "Psychological Test"
instead of "Biological Test". Binary notion of gender reflects in the
Indian Penal Code, for example, Section 8, 10, etc. and also in the
laws related to marriage, adoption, divorce, inheritance, succession
and other welfare legislations like NAREGA, 2005, etc. Non-
recognition of the identity of Hijras/Transgenders in the various
legislations denies them equal protection of law and they face
wide-spread discrimination.
76. Article 14 has used the expression "person" and the Article 15
has used the expression "citizen" and "sex" so also Article 16.
Article 19 has also used the expression "citizen". Article 21 has
used the expression "person". All these expressions, which are
"gender neutral" evidently refer to human-beings. Hence, they
take within their sweep Hijras/Transgenders and are not as such
limited to male or female gender. Gender identity as already
indicated forms the core of one's personal self, based on self
identification, not on surgical or medical procedure. Gender
identity, in our view, is an integral part of sex and no citizen can
be discriminated on the ground of gender identity, including those
who identify as third gender.
77. We, therefore, conclude that discrimination on the basis of
sexual orientation or gender identity includes any discrimination,
exclusion, restriction or preference, which has the effect of
nullifying or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution, and hence we are
inclined to give various directions to safeguard the constitutional
rights of the members of the TG community.
13. In the said judgment, in paragraph 129, the following
directions were issued by the Hon'ble Supreme Court, which read as
follows:
"1. Hijras, eunuchs, apart from binary genders, be treated as
"third gender" for the purpose of safeguarding their rights
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under Part III of our Constitution and the laws made by
Parliament and the State Legislature.
2. Transgender persons' right to decide their self-identified gender is also
upheld and the Centre and State Governments are directed to grant legal
recognition of their gender identity such as male, female or as third gender.
3. We direct the Centre and the State Governments to take steps to treat them as
Socially and Educationally Backward Classes of citizens and extend all kinds of
reservation in cases of admission in educational institutions and for public
appointments.
4. The Centre and State Governments are directed to operate separate HIV
serosurveillance centres since hijras/transgenders face several sexual health
issues.
5. The Centre and State Governments should seriously address the problems
being faced by hijras/transgenders such as fear, shame, gender dysphoria,
social pressure, depression, suicidal tendencies, social stigma, etc. and any
insistence for SRS for declaring one's gender is immoral and illegal.
6. The Centre and State Governments should take proper measures to provide
medical care to TGs in the hospitals and also provide them separate public
toilets and other facilities.
7. The Centre and State Governments should also take steps for framing
various social welfare schemes for their betterment.
8. The Centre and State Governments should take steps to create public
awareness so that TGs will feel that they are also part and parcel of the social
life and be not treated as untouchables.
9. The Centre and the State Governments should also take measures to regain
their respect and place in the society which once they enjoyed in our cultural
and social life."
14. Later, the Central Government came up with an enactment
viz. Transgender Persons (Protection of Rights) Act, 2019 (The
Transgender Persons Act) to ensure protection and welfare of the
transgenders. On going through the statutory scheme of
Transgenders Act, it can be seen that section 3 contemplates for
prohibition against discrimination of transgender persons . Section 4
provides the recognition of identity of transgender persons which
reads as follows:
"4. Recognition of identity of transgender person.--
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(1) A transgender person shall have a right to be recognised as
such, in accordance with the provisions of this Act.
(2) A person recognised as transgender under
sub-section (1) shall have a right to self-perceived gender identity."
Section 5 of the said Act deals with the application for the Certificate
of Identity which has to be granted by the District Magistrate and the
said provision reads as follows:
"5. Application for certificate of identity.--A transgender
person may make an application to the District Magistrate for
issuing a certificate of identity as a transgender person, in such
form and manner, and accompanied with such documents, as may
be prescribed: Provided that in the case of a minor child, such
application shall be made by a parent or guardian of such child."
Section 6 deals with the manner in which the said certificate
has to be issued by the District Magistrate.
15. In this case, the petitioners 1 and 2 were issued with
identity cards by the authorities concerned under sections 5 and 6 of
the Act, which are Exhibits P1 and P2. Section 8 deals with the
obligation of the appropriate Government to secure a full and
effective participation of transgender persons and their inclusion in
the Society. Chapter V consisting of sections 9 to 12 deal with the
obligations of the establishments and other persons, to ensure non
discrimination and to provide equal opportunities to them along with
any other individuals in the society. Chapter VI, consisting of sections
13 to 15 contemplates the provision mandating the educational
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institutions and healthcare facilities to ensure their prompt services
to the transgender persons. The authorities are also created as per
various provisions to ensure the welfare of the transgender persons.
The offences and penalties are also under Chapter VIII which reads
as follows:
"18. Offences and penalties.--Whoever,--
(a) compels or entices a transgender person to indulge in the
act of forced or bonded labour other than any compulsory
service for public purposes imposed by Government;
(b) denies a transgender person the right of passage to a
public place or obstructs such person from using or having
access to a public place to which other members have access
to or a right to use;
(c) forces or causes a transgender person to leave household,
village or other place of residence; and
(d) harms or injures or endangers the life, safety, health or
well-being, whether mental or physical, of a transgender
person or tends to do acts including causing physical abuse,
sexual abuse, verbal and emotional abuse and economic
abuse, shall be punishable with imprisonment for a term which
shall not be less than six months but which may extend to two
years and with fine."
The issue in this case is to addressed, in the light of factual
circumstances and also the legal provisions, referred to above.
16. As far as the respondents in this writ petition are
concerned, the main objection highlighted by them against the reliefs
sought by the petitioners is that, as per statutory provisions
prevailing now, as contained in the Registration of Births and Deaths
Act, 1969 and the Rules framed thereunder, there is no provision for
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issuing a birth certificate without specifically naming the mother and
father separately. On the other hand, the specific contentions put
forward by the learned counsel for the petitioners is by placing
reliance upon various difficulties, confusions and prejudices that are
likely to occur in the event of the 1 st petitioner being described as a
mother and the 2nd petitioner as the father in the birth certificate,
whereas they are now leading the lives of a male and female
respectively.
17. As regards the apprehension voiced by the learned
counsel for the petitioners, this Court finds that the same cannot be
simply brushed aside. The parental status in terms of gender
mentioned in the certificate is completely contrary to the way of life
now being pursued by the petitioners, which is diametrically opposite to
the concepts of gender and the unit of family, as understood under
normal circumstances. The confusions and prejudices as apprehended
by the petitioners, are likely to occur in all probability. Even though the
3rd petitioner, who is the beneficiary of a certificate, is not a transgender
person, his identity is intrinsically connected with the petitioners 1 and
2 who are transgender persons. In this regard, a specific contention
was raised by the learned Government Pleader to the effect that,
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since the 3rd petitioner is not a transgender person, he cannot take
recourse to the provisions of the Transgender Persons Act. However,
as observed above, since his identity is inseparable with that of the
1st and 2nd petitioners who are the transgender couples, the
protection given under the said Act cannot be ignored and, therefore,
the same will have some relevance while deciding the issue.
18. Therefore, the aforesaid aspect leads to a question whether
is it possible for this Court to interpret and implement the
provisions of the Act, 1969 and the Rules framed thereunder, to give
necessary instructions and directions to the authorities concerned to
issue a certificate of birth as sought by the petitioners, in deviation
from the statutory forms. For deciding the said question, it is
necessary to refer to the legal principles laid down by the Hon'ble
Supreme Court with regard to the evolution of law on the question of
the requirement of interpreting the existing statutory provisions by
giving new meaning to them in tune with the change in time and also
the change in the life style of the members of the Society in due
course.
19. While considering this question, it is relevant to note the
observations made by the Hon'ble Supreme Court in Deepika Singh
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v. Central Administrative Tribunal and Others [(2023)13 SCC
681]. In the said case, the Hon'ble Supreme Court was considering
the question relating to the denial of maternity leave to the appellant
therein. In the said case, two of the surviving children of her spouse
born in his previous marriage, were included in the service records of
the said appellant, for statutory benefits deriving from her
employment. Therefore, when she sought maternity leave for her
own child, it was denied on the reason that, as she had already
included the two children born to her spouse in his earlier wedlock, in
the service records, as her children, her own child had to be treated
as the third child, to which maternity benefits were not available. In
the said decision, the Hon'ble Supreme Court specifically referred to
the observations made by the Apex Court in Badshah v. Urmila
Badshah Godse and another [(2014)1 SCC 188], wherein it was
observed in para 13.3 that,
".............. Therefore, it becomes the bounden duty of the
courts to advance the cause of the social justice. While giving
interpretation to a particular provision, the court is supposed to
bridge the gap between the law and society". In Badshah's case
(supra), the Hon'ble Supreme Court examined the necessity to adopt
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different approaches in "social justice adjudication" which is also
known as "social context adjudication" as against "adversarial
approach" in certain circumstances. The concept of "social context
judging" was described by quoting the keynote address of Prof.
Madhava Menon (Keynote address on "Legal Education in Social
Context" delivered at National Law University, Jodhpur on 12 th
October, 2005) wherein the following observations were made:
"It is, therefore, respectfully submitted that 'social context
judging' is essentially the application of equality jurisprudence
as evolved by Parliament and the Supreme Court in myriad
situations presented before courts where unequal parties are
pitted in adversarial proceedings and where courts are called
upon to dispense equal justice. Apart from the social-
economic inequalities accentuating the disabilities of the poor
in an unequal fight, the adversarial process itself operates to
the disadvantage of the weaker party. In such a situation, the
Judge has to be not only sensitive to the inequalities of
parties involved but also positively inclined to the weaker
party if the imbalance were not to result in miscarriage of
justice. This result is achieved by what we call social context
judging or social justice adjudication."
20. After referring to the aforesaid concept, in Badshah's case
(supra) it was observed as follows:
"The law regulates relationships between people. It
prescribes patterns of behaviour. It reflects the values
of society. The role of the court is to understand the
purpose of law in society and to help the law achieve
its purpose. But the law of a society is a living
organism. It is based on a given factual and social
reality that is constantly changing. Sometimes change
in law precedes societal change and is even intended to
stimulate it. In most cases, however, a change in law is
the result of a change in social reality. Indeed, when
social reality changes, the law must change too. Just as
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change in social reality is the law of life,
responsiveness to change in social reality is the life of
the law. It can be said that the history of law is the
history of adapting the law to society's changing
needs. In both constitutional and statutory
interpretation, the court is supposed to exercise
discretion in determining the proper relationship
between the subjective and objective purposes of the
law."
21. Thus, in Deepika Singh's case (supra), after accepting
the aforesaid observations that, the law of a society is a living
organism, the Hon'ble Supreme Court proceeded to determine the
concept of family and the necessity to have a different definition to
the said expression in terms of the changing times and concepts.
Paragraph 26 of the decision in Deepika Singhs' case (supra) reads
as follows:
"The predominant understanding of the concept of a
"family" both in the law and in society is that it consists
of a single, unchanging unit with a mother and a father
(who remain constant over time) and their children.
This assumption ignores both, the many circumstances
which may lead to a change in one's familial structure,
and the fact that many families do not conform to this
expectation to begin with. Familial relationships may
take the form of domestic, unmarried partnerships or
queer relationships. A household may be a single
parent household for any number of reasons, including
the death of a spouse, separation, or divorce. Similarly,
the guardians and caretakers (who traditionally occupy
the roles of the "mother" and the "father") of children
may change with remarriage, adoption, or fostering.
*These manifestations of love and of families may not
be typical but they are as real as their traditional
counterparts. Such atypical manifestations of the
family unit are equally deserving not only of protection
under law but also of the benefits available under social
welfare legislation. The black letter of the law must not
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be relied upon to disadvantage families which are
different from traditional ones. The same undoubtedly
holds true for women who take on the role of
motherhood in ways that may not find a place in the
popular imagination."
(*highlighted for emphasis)
22. ABC v. State (NCT of Delhi) [2015(3) KLT 708(SC)
was a decision rendered by the Hon'ble Supreme Court in a case
where a single parent came up seeking direction to the authorities
concerned to issue a birth certificate showing the name of one parent
alone in the birth certificate. After referring to various provisions of
the Act, the statutory and social implications of the concept of a
family, and taking note of the practical difficulties that might have
arisen in that case, if the certificate is sought for was not issued, the
following observations were made by the Hon'ble Supreme Court in
paragraph 19:
"19. We are greatly perturbed by the fact that the
Appellant has not obtained a Birth Certificate for her
son who is nearly five years old. This is bound to create
problems for the child in the future. In this regard, the
Appellant has not sought any relief either before us or
before any of the Courts below. It is a misplaced
assumption in the law as it is presently perceived that
the issuance of a Birth Certificate would be a logical
corollary to the Appellant succeeding in her
guardianship petition. It may be recalled that owing to
curial fiat, it is no longer necessary to state the name
of the father in applications seeking admission of
children to school, as well as for obtaining a passport
for a minor child. However, in both these cases, it may
still remain necessary to furnish a Birth Certificate. The
law is dynamic and is expected to diligently keep pace
with time and the legal conundrums and enigmas it
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presents. There is no gainsaying that the identity of the
mother is never in doubt. Accordingly, we direct that if
a single parent/unwed mother applies for the issuance
of a Birth Certificate for a child born from her womb,
the Authorities concerned may only require her to
furnish an affidavit to this effect, and must thereupon
issue the Birth Certificate, unless there is a Court
direction to the contrary. Trite though it is, yet we
emphasise that it is the responsibility of the State to
ensure that no citizen suffers any inconvenience or
disadvantage merely because the parents fail or
neglect to register the birth. Nay, it is the duty of the
State to take requisite steps for recording every birth
of every citizen. To remove any possible doubt, the
direction pertaining to issuance of the Birth Certificate
is intendedly not restricted to the circumstances or the
parties before us."
23. In Navtej Singh Johar and Ors. v. Union of India,
(2018) 10 SCC 1, the constitutional validity of section 377 of
Indian Penal Code was challenged and thereby decriminalized
consensual homosexual acts between the individuals, wherein
paragraph 86 of the above decision holds as follows;
"86. The Court, as the final arbiter of the Constitution,
has to keep in view the necessities of the needy and the
weaker sections. The role of the Court assumes further
importance when the class or community whose rights are in
question are those who have been the object of humiliation,
discrimination, separation and violence by not only the State
and the society at large but also at the hands of their very own
family members. The development of law cannot be a mute
spectator to the struggle for the realisation and attainment of
the rights of such members of the society."
24. Thus, from the above statutory provisions as well as judicial
precedents referred to above, it is evident that, the law cannot
remain static, but it has to evolve in accordance with the changes in
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the Society and the life style of the members of Society. As
mentioned in Badshah's case (supra), the law of a society is a living
organism and therefore it has to take within its sweep, all the social
changes that takes place by passage of time, so as to make the law
suitable to the needs of the Society. When it comes to the question
of the provisions contained in the Register of Births and Deaths,
1969, it was framed by keeping a binary concept of gender viz., male
and female. At the time when it was enacted, apparently there was
no concept of legal recognition being granted to a third gender, who
is not a male or female. That evolution commenced much later,
initially in the form of the decision rendered by Hon'ble Supreme
Court in National Legal Services Authority's case (supra) and
also the Transgender Persons Act which came into force on
10.01.2020. Going by the statutory scheme of Transgender Persons
Act, it can be seen that, transgender persons were granted statutory
recognition before law and they are entitled to an equal treatment in
so far as the opportunities for employment, business, leading a life
as a common man etc, are concerned. In National Legal Services
Authority's case (supra), the Hon'ble Supreme Court categorically
observed that, the transgender persons are entitled to equal
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protection under the provisions of Articles 14,15,16,19 and 21 of the
Constitution of India as the said provisions are gender neutral and
refer to human beings. However, while enacting the Act, 1969, for
registration of births and deaths, apparently, the law makers never
envisaged a situation that has come up in this case. The concepts
such as, the transgenders leading a life together as a family as we
normally understood, having their own children, getting the names
of their children registered under the provisions of the Registration of
Births and Deaths Act etc., were something the law makers probably
not anticipated at the time of its enactment. Therefore, these are
the changes that occurred in the Society, post enactment of Act,
1969, which has got the statutory recognition and also their gender
based individual status, identity and rights were upheld by the
Hon'ble Supreme Court as well. Despite the above, the corresponding
changes in the Act, 1969 have not been made, so as to uphold the
rights, protection and the identity of the transgender persons, which
they are otherwise entitled to, based on the various Constitutional
rights declared in their favour as per National Legal Services
Authority's case. Therefore, this is a fit case in which, an approach
emphasizing "social justice adjudication" or "social context
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adjudication" as explained by the Honourable Supreme Court in
Badshah's case (supra), has to be adopted, to carry out "social
context judging" as described by Prof Madhava Menon, which was
referred to by the Honourable Supreme Court in the above decision.
25. I have already held that, the apprehension voiced by the
petitioners with regard to the confusions, difficulties and obligations
and prejudices owing to the complexities involved in the description
of gender in the birth certificate of the 3 rd petitioner are genuine.
Even though the statutory recognition has been granted to the
transgender persons by the provisions referred to above, the Society
as a whole is yet to accept the said reality and it is a time consuming
affair. Therefore, the birth certificate in the form as prescribed in the
rules viz., Form-5 would cause serious difficulties for the 3 rd
petitioner, in the life ahead. As observed in the decision referred to
above, the law has to evolve, in tune with the new concepts of
human life and changes in Society, and when the statutory provision
on a particular point is not in tune with such societal changes, this
Court has to intervene to redress the genuine grievances of the
parties concerned.
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26. As far as the issue involved in this case is concerned, it is
confined to the question of issuance of a birth certificate which is
strictly personal to the petitioners, particularly to the 3 rd petitioner. It
neither affects the rights of any third party nor does it affect any
other institutions. Therefore, it is not proper to adopt a hyper
technical stand that, because of the fact that the Form prescribed in
the Rules does not contemplate a birth certificate containing the
description of the 1st and 2nd petitioners as mere parents, a certificate
as requested, need not be granted to them. If a certificate as sought
by the petitioners, advances the welfare, interests and the rights of
the petitioners or the class/category they fall in, particularly when
their rights originate from the Articles of the Constitution of India,
without offending any of the rights of the 3rd parties and without
doing violence to any statutory provisions, this court need not
hesitate to step in and to issue appropriate directions to issue a
certificate to the petitioners. The view taken by this Court on this
issue is fortified by the observations made by the Calcutta High Court
in Arpita Chowdhury v. Nabadwip Municipality and Anr.[WPA
No.88 of 2023]. In the said decision, while dealing with the
question as to whether the prayer of the petitioner to replace the
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name of her erstwhile husband and to incorporate the name of the
present husband as the father of her minor child was considered.
While granting the reliefs sought therein, it was observed as follows:
"Law has to be dynamic and ought to evolve to tackle such issues.
One cannot be hyper technical while dealing with personal issues
with hardly any public law element involved.
27. Thus, on carefully examining the statutory provisions as
referred to above, in the light of the observations made by the
Hon'ble Supreme Court in the decision referred to above, I find that
the reliefs sought by the petitioners are to be granted. This is
particularly because, as far as the manner in which the details of
birth are to be recorded and the registers to be maintained under the
provisions of the Registration of Births and Deaths Act, 1969 and the
Rules framed thereunder are concerned, the purpose is only to
ensure that proper records are maintained with regard to the details
of the births and deaths. Since the said details are very important to
a person to claim his status, identity and citizenship, it is a document
which is sacrosanct and has to be maintained by following a strict
procedure. The possibilities of erroneous entries coming in, have to
be ruled out, and every measure for the same has to be taken.
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28. However, when it comes to the question of issuance of a
certificate showing the petitioners 1 and 2, as the parents of the 3 rd
petitioner, without their status as a mother or father, I do not find
that it would defeat any purposes behind the enactment of the Act.
The reliefs sought by the petitioners is to issue a birth certificate
confining the description of the status of the petitioners 1 and 2 as
the parents of the 3rd petitioner. Significantly, they are not asking for
modification of any of the entries made in the register maintained by
the authorities concerned under the provisions of the Registration of
Births and Deaths Act, 1969. As far as the birth certificate is
concerned, it is governed by section 12 of the Act, 1969, which
imposes an obligation on the Registrar, to furnish certain information
extracted from the register relating to the birth or death.
Conspicuously, Section 12 of the Act does not provide that all the
information furnished before the Registrar and included in the
Register should be included in the certificate. Rule 8 of the Kerala
Registration of Births and Deaths Rules, 1999 reinforces the
aforesaid concept, as it only provides that the "extracts" of the
particulars from the Register relating to the births and deaths are to
be given to the informant under section 12. Therefore, the irresistible
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conclusion that can be drawn from the above is that, all the
information available with the Registering authority, need not be
furnished while issuing a certificate, as the expression used is
'extracts of the registration entries'. Of course it is true that, Rule 8
provides for a particular form viz. Form 5, through which a certificate
has to be furnished and it includes the names of the mother and
father. In this regard, I have already observed that, the Act, 1969
and the Rules, 1999 were framed without taking note of various
kinds of the rights of the transgender persons as recognized by the
Hon'ble Supreme Court in National Legal Services Authority's
case (supra) and also the Transgenders Act, 2019. The concepts
regarding the rights of transgender persons were not taken into
account while prescribing the Forms contemplated under the Act and
Rules as far as the birth certificate is concerned. Therefore, I find
that necessary modifications can be made in appropriate cases where
the interests of the transgender persons are involved.
29. As one of the reliefs, the petitioners have sought to read
down the provisions in the Rules which provide the forms for
furnishing the details of birth and also the issuance of the certificate.
However, I am of the view that, reading down of the provisions is not
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necessary, as the case at hand is a rare and exceptional case, and
the facts and circumstances of such a case, cannot be a reason to
interpret the validity of the statutory stipulations in the Act and Rules
referred to above. In other words, this being an exceptional case,
exceptional remedies are to be explored and exceptional reliefs are to
be granted.
In such circumstances, this Writ Petition is disposed of directing
the 5th respondent to issue birth certificate in Form 5, with a
modification by removing the columns set apart for the names of
Father and Mother and by incorporating the names of the petitioners
1 and 2 as the parents, without referring to the gender of the
petitioners 1 and 2. The certificate, as referred to above, shall be
issued to the petitioners within a period of two months from the date
of receipt of a copy of this judgment. However, it is clarified that, no
alteration in the details entered into the registers maintained in this
regard needs to be made and the modification directed is confined to
the issuance of the birth certificate alone.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
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APPENDIX OF WP(C) 23763/2023
PETITIONERS' EXHIBITS
EXHIBIT P1 A TRUE COPY OF FIRST PETITIONER'S TRANSGENDER
IDENTITY CARD ISSUED BY THE DISTRICT
MAGISTRATE, KOZHIKODE, ON 30/10/2021
EXHIBIT P2 TRUE COPY OF SECOND PETITIONER'S TRANSGENDER
IDENTITY CARD ISSUED BY THE DISTRICT
MAGISTRATE, KOZHIKODE, ON 05/01/2022
EXHIBIT P3 TRUE COPY OF THE SECONDARY SCHOOL LEAVING
CERTIFICATE NO.Q.333392
EXHIBIT P4 TRUE COPY OF THE AADHAR CARD NO 6423 2879
1836 OF THE FIRST PETITIONER
EXHIBIT P5 TRUE COPY OF THE SECONDARY SCHOOL LEAVING
CERTIFICATE NO.S.580935
EXHIBIT P6 TRUE COPY OF THE AADHAR CARD NO. 2080 5209
5643 OF THE SECOND PETITIONER
EXHIBIT P7 TRUE COPY OF BIRTH CERTIFICATE ISSUED BY THE
KOZHIKODE CORPORATION DATED 17/02/2023
EXHIBIT P8 INTERNATIONAL CASE LAW
EXHIBIT P9 JUDGMENT OF THE HON'BLE SUPREME COURT OF
UNITED STATES IN MARISA N.PAVAN ET AL V.
NATHANIEL SMITH ( 582 U.S.2017), DATED 26 TH
JUNE 2017
