The Kerala High Court on Friday ordered the addition of the father's name in the birth certificate of a child born when parents were living together, exercising its extraordinary powers under Article 226 of the Constitution of India.

Justice PV Kunhikrishnan passed the order while considering a plea by the parents of the child, whose birth certificate recorded only the mother's name but left the father's name as 'blank'.

Even though there was no provision in the Registration of Births and Deaths Act, 1969, that provides that the father's name can be subsequently added, the court stepped in to give relief to the petitioners:

“It is true that there is no provision in the Act of 1969 to correct the name of the child or to add the father's name to a child born to a single mother. But this court can exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in appropriate cases. This is an appropriate case in which the child wants her father's name on the birth certificate, and the father and mother want to add the father's name to the birth certificate. They also want to add the father's name along with the child's name. In such a situation, this court should step in and redress the grievance of the petitioners,” the court observed.

The petitioners were living together when the second petitioner donated his sperm to the first petitioner. Due to a misunderstanding between the petitioners at the time of the child's birth, the first petitioner decided to be a single mother, and the father's name was not mentioned on the birth certificate.

However, the petitioners subsequently got married and had a second child, whose birth certificate recorded both parents' names. Following this, the family approached local authorities to add the father's name, citing that there was no legal provision permitting the same. As a result, they approached the High Court, invoking writ jurisdiction.

While considering the plea, the court remarked that the child's trauma was equivalent to that of Mahabharata's Karna.

The court also questioned whether the law can act as a barrier when both parents want to declare that the child was born to them:

“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…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?”

The court also took note of a plea before the Family Court instituted to declare the paternity of the first child. In mediation before the Family Court, the petitioners settled their disputes and entered into an agreement stating that they were the parents of the first child.

The Aadhaar card of the child also lists the 2nd petitioner as the father. However, even though these documents were also produced before the Registrar of Births, their application to add the father's name was rejected.

Since the local authority's stand was merely procedural, the court held that the rejection could be set aside.

Thus, the court allowed the plea and directed the local authorities to change the child's name to include her father's name and to add his name to her birth certificate. It was directed that the new birth certificate be issued within one month.

(With LiveLaw Inputs)