Kerala High Court: In a writ petition filed by a transgender couple seeking issuance of a birth certificate for their child, which mentioned them as the parents and not as mother and father, a Single Judge Bench of Ziyad Rahman A.A., J., allowed the petition holding that the concerns raised by the petitioners were valid as the issuance of the certificate in the prescribed form would cause serious difficulties to the child in life ahead. The Court reiterated that the law must evolve in tandem with new concepts of human life and societal changes.
“When a statutory provision on a particular point is not in line with such societal changes, the Court must intervene to address the genuine grievances of the parties concerned.”
Background
Petitioner 1 was born as a female but later recognised himself as a male and decided to live as a male. Similarly, petitioner 2 was born as a male and later, upon identifying as a female, decided to live as a female. Both of them obtained the transgender identity card issued by the District Magistrate as contemplated under the Transgender Persons (Protection of Rights) Act, 2019 (‘the TP Act’) and Aadhar cards in tune with their self-identified gender.
Thereafter, the transgender couple began living together, and petitioner 1 gave birth to a baby boy, petitioner 3. The child was not a transgender child. Upon birth, the hospital authorities reported the birth to the Kozhikode Corporation, and the details of the transgender couple was incorporated in the Register maintained under the Registration of Births and Deaths Act, 1969 (‘the RBD Act’). In the details so furnished, petitioners 1 and 2 were noted as the mother and father of the child, respectively.
The transgender couple, living a life contrary to the genders, noted in the birth certificate of their child, were aggrieved that such discrepancy would likely create serious problems and prejudices in the life of the child in terms of education, employment, profession, etc. They approached the Kozhikode Corporation to issue a fresh birth certificate describing them as the parents instead of as the mother and father, and without mentioning their gender. However, the Kozhikode Corporation refused to entertain their request by stating that, as per the provisions contained in the RBD Act and the Kerala Registration of Births and Deaths Rules, 1999 (‘Kerala Rules’), the Corporation can issue a certificate only in the prescribed format. It contended that there were no other statutory provisions that enabled them to issue a birth certificate otherwise than contemplated under the Rules. Therefore, the request was not entertained.
Aggrieved, the petitioners filed the present petition.
Issue
- Whether the Kozhikode Corporation can issue the birth certificate by simply describing the petitioners as the parents of the child instead of stating them as mother and father, respectively.
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Whether the Court can interpret and implement the RBD Act, 1969, and the Rules framed thereunder to give necessary instructions and directions to the authorities concerned to issue a birth certificate as sought by the petitioners, in deviation from the statutory forms.
Analysis
At the outset, the Court noted that the Supreme Court in National Legal Services Authority v. Union of India (2014) 5 SCC 438, after elaborately discussing the issue with specific reference to the Universal Declaration of Human Rights, 1948, categorically held that Hijras/Transgender Persons are to be granted legal recognition and protection under Articles 14, 15, 16, 19 and 21 of the Constitution. Later, the Central Government enacted the TP Act to ensure the protection and welfare of transgender persons.
The Court further noted that the apprehension voiced by the petitioners could not be simply brushed aside. The parental status in terms of gender mentioned in the certificate was completely contrary to the way of life now being pursued by the petitioners, which was diametrically opposite to the concepts of gender and the family unit as understood under normal circumstances. The confusions and prejudices as apprehended by the petitioners were likely to occur in all probability. Even though the child, who was the beneficiary of a certificate, was not a transgender person, his identity was intrinsically connected with the petitioners who were transgender persons. The Court rejected the contention that since the child was not transgender, he could not take recourse to the TP Act, stating that his identity was inseparable from that of his parents, who were a transgender couple. Thus, the protection provided under the TP Act had to be considered.
For deciding the issue of the Court’s power to interpret and implement the RBD act to grant the prayer sought by the petitioners, the Court referred to Deepika Singh v. Pgimer, Chandigarh (2023) 13 SCC 681, wherein the Court accepted the observations made in Badshah v. Urmila Badshah Godse (2014) 1 SCC 188, and determined the concept of family and the necessity to have a different definition to the said expression considering the changing times and concepts. In Badshah (supra) the Supreme Court examined the necessity of adopting different approaches in “social justice adjudication” or “social context adjudication” rather than an “adversarial approach” in certain circumstances. The Court further referred to X1 v. State (NCT of Delhi) (2015) 10 SCC 1, wherein a single parent was issued a birth certificate with just the name of one parent.
The Court stated that it was evident from the statutory provisions as well as judicial precedents that the law cannot remain static it has to evolve per the changes in society and the lifestyles of the members of the society.
The Court stated that when the RBD Act was framed, it was done by keeping a binary concept of gender in mind. There was no concept of legal recognition being granted to a third gender, who was neither a male nor female. The Court added that while enacting the RBD Act, apparently, the lawmakers never envisaged a situation that had come up in the present case. The concepts, such as transgender persons leading a life together as a family as was normally understood, having their children, getting the names of their children registered, etc., were probably not anticipated at the time of its enactment. This evolution commenced much later via the decision in NALSA (supra) and the enactment of the TP Act.
The Court noted that, however, despite such recognition, the corresponding changes were not made in the RBD Act to uphold the rights, protection, and identity of transgender persons. Therefore, the Court held that this is a fit case to adopt the approach emphasising “social justice adjudication” or “social context adjudication” as explained by the Supreme Court in Badshah (supra).
Reiterating the validity of the concerns voiced by the petitioners, the Court remarked that even though the statutory recognition had been granted to transgender persons, society had yet to accept the said reality, and it was a time-consuming affair. Therefore, the birth certificate in the form as prescribed in the Kerala Rules, i.e., Form 5, would cause serious difficulties for the child in the life ahead. The Court also reiterated that 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, the Court has to intervene to redress the genuine grievances of the parties concerned.
Furthermore, the Court stated that the issuance of the birth certificate, which was strictly personal to the petitioners, neither affected the rights of any third party nor any other institution. Thus, it was improper to adopt a hyper-technical stand that since the form prescribed in the Kerala Rules did not contemplate a birth certificate containing the description of the petitioners as mere parents, such a certificate could not be granted. If a certificate, as sought by the petitioners, advanced the welfare, interests, and rights of the petitioners or the class/category they fall in, particularly when their rights originated from the Articles of the Constitution, without offending any of the rights of the third parties and without causing violence to any statutory provisions, the Court need not hesitate to step in and issue appropriate directions to issue the said certificate.
While rejecting the prayer that certain provisions of the Kerala rules be read down, the Court held that such an action was not necessary as the case at hand was a rare and exceptional case whose facts and circumstances could not be a reason to interpret the validity of the statutory stipulations.
Decision on the rights of transgender couple to be listed as “parents” on Birth Certificate
Thus, upon careful examination of statutory provisions and observations of the Supreme Court, the Court granted the relief and allowed the petition.
The Court explained that this was because the purpose of the RBD Act and its rules was only to ensure that proper records were maintained concerning the details of the births and deaths, as far as how the details of the birth are to be recorded, and the registers are to be maintained were concerned. Since the said details were very important to a person to claim his status, identity, and citizenship, it was a document which is sacrosanct and had to be maintained by following a strict procedure. The possibility of erroneous entries coming in had to be ruled out, and every measure for the same had to be taken.
The Court further held that issuance of the birth certificate to the petitioners, without their status as mother and father, would not defeat any purposes behind the enactment of the RBD Act. The relief sought was to confine the status of petitioners as parents of the child; they were not asking for modification of any of the entries made in the Register maintained by the authorities under the RBD Act. The Court also held that Section 12 of the RBD Act, which provides for furnishing certain information about birth or death, did not provide that all the information furnished before the Registrar and included in the Register should be included in the certificate. Further, Rule 8 of the Kerala Rules reinforces this concept, as it provides that only 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 conclusion was that all the information available with the Registering authority need not be furnished while issuing a certificate.
The Court added that since the concepts regarding the rights of transgender persons were not considered while prescribing the Forms under the RBD Act and Rules, necessary modifications could be made in appropriate cases where the interests of the transgender persons were involved.
Accordingly, the Court directed the Kozhikode Corporation to issue birth certificates in Form 5, with a modification by removing the columns for the names of the father and mother and by incorporating the names of the transgender couple as the parents, without referring to their gender. The certificate shall be issued to the transgender couple within two months from the date of receipt of a copy of this judgment. However, it was clarified that no alteration in the details entered into the registers, maintained in this regard, was required.
[Zahhad v. State of Kerala, WP(C) No. 23763 of 2023, decided on 02-06-2025]
Advocates who appeared in this case :
For the petitioner: Padma Lakshmi, Prashant Padmanabhan, Meenakshi K.B., Mariyamma A.K., Ipsita Ojal, and Pooja Unnikrishnan
For the respondent: Shri. V. Krishna Menon and Spl. Govt. Pleader V. Manu
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