Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

Issue

Whether an individual’s control over such cardinal element of identity could be denied to him/her by the Central Board of Secondary Education on the specious ground that its Examination Byelaws of 2007 must prevail over the claim of the candidate, which are merely intended to regulate such a claim and to delineate the procedure for correction/change in the contents of certificate(s) issued by it including regarding maintenance of its office records?

Analysis

Do you have the right to change your identity?

“What’s in a name? that which we call a rose by any other name would smell as sweet”, said Juliet. This quote from William Shakespeare’s “Romeo and Juliet” is unarguably one of the most iconic dialogues in classical literature.  It conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics.  A poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions. To put it differently, name is an intrinsic element of identity.”

Identity is an amalgam of various internal and external including acquired characteristics of an individual and name can be regarded as one of the foremost indicators of identity. And therefore, an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”. Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause.

Any change in identity of an individual has to go through multiple steps and it cannot be regarded as complete without proper fulfilment of those steps. An individual may self¬identify oneself with any title or epithet at any point of time. But the change of identity would not be regarded as formally or legally complete until and unless the State and its agencies take note thereof in their records. Afterall, in social sphere, an individual is not only recognized by how an individual identifies oneself but also by how his/her official records identify him/her. For, in every public transaction of an individual, official records introduce the person by his/her name and other relevant particulars.

However, going by the very nature of rights under Article 19, the right to get changed name recorded in the official (public) records cannot be an absolute right and as a matter of public policy and larger public interest calls for certain reasonable restrictions to observe consistency and obviate confusion and deceptive attempt.

Byelaws violative of fundamental right to change one’s identity?

The concerned Byelaw has been framed on the assumption that there can be no situation wherein a legitimate need for change of name could arise for a student after publication of results. It is presumed that only typographical/factual errors could come in the certificates and they can be corrected using the provision for corrections.

“The presumption, we must note, is erroneous, absurd and distances itself from the social realities.”

There can be numerous circumstances wherein change of name could be a legitimate requirement and keeping the ultimate goal of preserving the standard of education in mind, the Board must provide for a reasonable opportunity to effect such changes.

Further, the balance of convenience would tilt in favour of students.  For, they stand to lose more due to inaccuracies in their certificates than the Board whose sole worry is increasing administrative burden.

“The obligation of Board to take additional administrative burden is no doubt onerous but the propensity of a student losing career opportunities due to inaccurate certificate is unparalleled.”

A Board dealing with maintenance of educational standards cannot arrogate to itself the power to impact identity of students who enrol with it. The right to control one’s identity must remain with the individual, subject, of course, to reasonable restrictions.

What kind of requests can be made?

Where the incumbent wants “correction” in the certificate issued by the CBSE:

  • There is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations.
  • While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction.
  • The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate  original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with  caption/annotation against the changes carried out and the date of such correction.
  • It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten.
  • The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate.
  • The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing   fresh   certificate.
  • At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, would be unreasonable and excessive.
  • If the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it.
  • However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance.
  • If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time.

Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed.

In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.

“Change” of particulars in the certificate issued by the CBSE:

The request for “change” of particulars in the certificate issued by the CBSE,  presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records.

When are such requests made?

(a) on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith.

There is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses.

The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant.

The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof.

“In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).”

(b) due to the acquired name by choice at a later point of time which need not be backed by public documents pertaining to the candidate:

Such a request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard and publication in the Official Gazette including surrender/return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of   prescribed fees.

The fresh certificate may retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE.  This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.

Directions

  • The CBSE to process the applications for correction or change, as the case may be, in the certificate issued by it in the respective cases under consideration.
  • Even other pending applications and future applications for such request be processed on the lines of the decision of the Court in the present case, as may be applicable, until amendment of relevant Byelaws.
  • Additionally, the CBSE shall take immediate steps to amend its relevant Byelaws so as to incorporate the stated mechanism for recording correction or change, as the case may be, in the certificates already issued or to be issued by it.

[Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415, decided on 03.06.2021]


Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

Case BriefsHigh Courts

Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.

Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.

OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.

Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.

Analysis and Decision

Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.

‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.

Purpose of Writ

It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.

Legality of Agreement dated 31-07-2020

As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.

A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.

Agreement of which either party to it is a minor- Legal Status 

Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

 It is pertinent to keep in mind the age of the majority which capacitates a person to contract.

Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.

As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.

Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.

An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.

Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –

“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”

High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.

India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.

 In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?

Legal Position to address the above question:

(i) contract with minor is void and no legal obligation can ever arise on him/her therein,

(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and

(iii) no court can allow specific permission of a contract with minor because it is void altogether.

When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.

Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.

Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]


Advocates before the Court:

Counsel for the Petitioner: Janardan Singh

Counsel for the Respondent: G.A.

Case BriefsHigh Courts

Madras High Court: P.T. Asha, J., addressed a matter in relation to adoption and modification in the birth certificate of a minor in terms of change in the name of the biological father of the child.

Legal status of a biological daughter

Petitioners are the adopted father and biological/natural mother of minor seeking direction from the Court that petitioner 1 be appointed as a father of the minor female child and consequently, the minor child be entitled to the legal status of a biological daughter with all the rights of succession and inheritance in respect of the adopted father and a modified birth certificate of the minor be issued.

Adoption Regulations and the JJ Act

Petitioners have contended that the conditions prescribed under Adoption Regulations and the Juvenile Justice Act have fully been complied with while filing the present petition.

Bench on perusal of the facts and submission in the present matter stated that the parties are all Hindus and therefore bound by the provision of the Hindu Adoption and Maintenance Act, 1956.

In the instant matter, the biological father of the minor child died three years back, and hence proviso to Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 would not be applicable to the case.

Adoption

Court observed that it is well open to the biological mother of the minor child to give her child to adoption and since both petitioner 1 and the petitioner 2 i.e. the biological mother of the child are happily married and living together and the minor has been living with them, there is no impediment to the said prayer of adoption.

 Birth Certificate of the minor cannot be modified

Bench stated that on the date when the birth certificate of the minor was issued, the biological father was alive and it is him who has been described as the father of the minor child in the birth certificate.

Adoption does not sever the relationship of the minor with her biological father. 

Only exception to the above is, when the biological father himself renounces his right as father of the minor and consents for the child to be taken by the adoptive father.

Court added that even in the above-stated cases, only the status of being a biological father does not change, only the status of adoptive father, custody and maintenance of the minor child changes hands.

In the present matter, the biological mother cannot deprive the minor child’s right to have the name of her biological father in her birth certificate.

Registration of the births is governed by the provisions of the Registration of Births and Deaths Act, 1969.

Under what circumstances can a correction or cancellation of the entry in the register of births and deaths be made?

Court stated that only under the following circumstances the birth certificate can be modified:

(a) When the entry is erroneous in form or substance; and

(b) The entry has been fraudulently or improperly made.

Under Section 15 of the Registration of Births and Deaths Act, 1969 it is clear that the original entry cannot be corrected/deleted and the incorporation of the new details can be made only in the margin.

In the present matter, Rule 5 of Tamil Nadu Registration of Births and Deaths Rules, 2000 talks about adoption and prescribes a form. Serial Nos. 7 and 8 relate to the name of the adoptive mother and the adoptive father.

Hence, the petitioner’s request to delete the biological father’s name from the original birth certificate is not legally sustainable since the rules clearly provide for incorporating the name of the adoptive parents separately in column nos. 7 and 8 as adoptive parents and not as natural parents.

Court held that the substitution of the name of petitioner 1 as the biological father of the minor cannot be permitted and taking into consideration the Rule 5 of Tamil Nadu Registration of Births and Death Rules, 2000, Court directed for issuance of a birth certificate as contained in Form 1-A of the Rules by effecting entries in column nos. 6,7,8,9 and 10 and the original birth certificate shall remain unaltered.

In view of the above, the original petition was allowed. [Vivek Narendran, In Re., 2020 SCC OnLine Mad 1758, decided on 20-07-2020]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of M.S. Ramesh, J. addressing a Writ Petition filed under Article 226 of the Constitution of India on the issue of removal of a name recorded in the column of father’s name in the birth certificate of the petitioner’s child.

In the present case, the daughter of the petitioner was born through a treatment named ‘intrauterine fertility treatment’ in which the insemination was done with the help of a semen donor. The birth certificate of the child consisted of the petitioner’s name in the mother’s column whereas in the father’s column the name of Mr Manish Madanpal was mentioned which was wrongly entered as he had no relation with the child and was just helping the petitioner during her delivery on a humanitarian ground.

The petitioner’s request for the removal of the father’s name was rejected on the ground that only the mistakes and errors in the names of the father can be rectified and removal of the name from the birth certificate is not contemplated under the relevant law.

One of the pertinent issue that Court noticed was of the insistence of the authorities towards the petitioner in regard to the revelation of father’s name. The High Court established the fact that in a case like that of the petitioner’s, the name of the name of the father of the child cannot be disclosed. By placing reliance on the Supreme Court case in  ABC v. State (NCT of Delhi), AIR 2015 SC 2569, the High Court also stated that no women shall be insisted on revealing the father’s name when the details of the birth are registered in the books of the authorities concerned.

Therefore, on the directions of the Court, the birth certificate in the present case was rectified in which the father’s name was left blank. [Mathumitha Ramesh v. Chief Health Officer,2018 SCC OnLine Mad 2153, dated 11-06-2018]