Law Must Evolve In Tune With New Concepts Of Human Life: Kerala High Court Permits Transgender Couple To Be Shown As ‘Parents’ In Child’s Birth Certificate
The Kerala High Court remarked that even though the statutory recognition has been granted to the transgender persons by the provisions, the Society as a whole is yet to accept the said reality and it is a time-consuming affair.
Justice Ziyad Rahman A.A., Kerala High Court
The Kerala High Court has allowed a transgender couple to be shown as ‘parents’ instead of mother and father in their child’s birth certificate.
The essential issue in the Writ Petition before the Court pertained 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.
A Single Bench of Justice Ziyad Rahman A.A. observed, “… the birth certificate in the form as prescribed in the rules viz., Form–5 would cause serious difficulties for the 3rd 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.”
The Bench remarked that even though the statutory recognition has been granted to the transgender persons by the provisions, the Society as a whole is yet to accept the said reality and it is a time-consuming affair.
Advocates Prasant Padmanabhan and Padma Lakshmi appeared for the Petitioners while Special Government Pleader (SGP) V. Manu and Standing Counsel V. Krishna Menon appeared for the Respondents.
Factual Background
The first Petitioner was born as a female and as per the Secondary School Leaving Certificate, the gender of the first Petitioner was noted as female. Later, the said Petitioner recognized 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 was also obtained. The second 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 first Petitioner felt and accordingly he decided to live as a female. Therefore, he adopted the name of a female and also obtained a transgender identity card from the competent authority under the Transgender Persons Act.
They both started to live together and during this period, the first Petitioner (trans-man) became pregnant and delivered a baby boy. The details of the Petitioners and birth of their child were incorporated in the Register maintained by the Respondent (Secretary, Kozhikode Corporation) under the provisions of the Registration of Births and Deaths Act, 1969 and the rules framed thereunder. In the details furnished, the first Petitioner was shown as the mother and the second Petitioner as the father. The apprehension of the Petitioners was that the gender identities as described in the birth certificate, being contrary to the gender status in life adopted by the parties, are likely to create serious problems and prejudices in the life of their child, when it comes to the question of education, employment or other profession etc. Hence, they approached the Kozhikode Corporation to issue a fresh birth certificate by describing them as the parents instead of mother and father, and without mentioning their gender. The said request was rejected and this was challenged before the High Court.
Reasoning
The High Court after hearing the contentions of the counsel, said, “… this is a fit case in which, an approach emphasizing “social justice adjudication” or “social context 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.”
The Court noted 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 child are genuine.
“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”, it added.
The Court was of the opinion that 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”, it further observed.
The Court said 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”.
“… necessary modifications can be made in appropriate cases where the interests of the transgender persons are involved. … I am of the view that, reading down of the provisions is not 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”, it also noted.
The Court, therefore, concluded that this being an exceptional case, exceptional remedies are to be explored and exceptional reliefs are to be granted.
Accordingly, the High Court disposed of the Writ Petition and directed the Respondent to issue a birth certificate with a modification by removing the columns set apart for the names of Father and Mother and by incorporating the names of the Petitioners as the parents, without referring to the gender of the Petitioners.
Cause Title- Zahhad & Ors. v. State of Kerala & Ors. (Neutral Citation: 2025:KER:35175)
Appearance:
Petitioners: Advocates Prasant Padmanabhan, Padma Lakshmi, Meenakshi K.B., Mariyamma A.K., Ipsita Ojal, and Pooja Unnikrishnan.
Respondents: SGP V. Manu and Standing Counsel V. Krishna Menon.
