Case BriefsHigh Courts

Kerala High Court: Satish Ninan, J., held that the mandatory requirement for disclosing Father’s name in Birth/Death Certificate was violative of Fundamental Right. Addressing the direction of Ministry of Home Affairs where instead of amending the format it had directed to leave the details of father vacant, the Bench stated,

“Requiring the petitioner to leave the column regarding the details of father as blank for the issuance of a certificate of birth or certificate of death necessarily affects the right of dignity of the mother as well as the child.”

Mandatory Requirement for Disclosing Father’s name in Birth/Death Certificate

The petitioner was a divorcee who had opted to get conceived by In Vitro Fertilization (in short, “IVF”) procedure. The identity of the sperm donor had been kept anonymous and had not been disclosed to the petitioner. The grievance of the petitioner was with regard to fulfilment of certain formalities for registration of the birth of the child, on delivery. In other words, the petitioner was aggrieved by the format of Rule 8 of the Kerala Registration of Births and Deaths Rules, 1970 which made it mandatory to disclose the name of the father of the child. The petitioner assailed the said provision on the grounds that she could not be required to provide the name of the father as the same would be violative of her fundamental rights, for reasons that:

  1. The identity of the sperm donor is kept anonymous and has not been and could not be disclosed even to the petitioner,
  2. such requirement intrudes upon her right of privacy, liberty and dignity.

In ABC v. State (NCT of Delhi) (2015) 10 SCC 1, the Supreme Court had held that, “There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother apply 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.” 

Following in the abovementioned decision, the Ministry of Home Affairs, Government of India, had issued directions to the Chief Registrar of Births and Deaths throughout the country to have the birth of the child of a single parent/unwed mother to be registered showing the name of the single parent in the birth record leaving the name of the other parent blank. The petitioner argued that to leave the column relating to the name of the father in the prescribed form as blank, interferes with the right of dignity, privacy and liberty.

Registration of Births and Deaths Act, 1969 Section 8(1) of the Act requires the particulars sought for in the forms prescribed by the State Government, to be furnished to the Registrar.

Reliance was also placed by the petitioner on the decision of the Supreme Court in Suchita Srivastava v. Chandigarh Admn. 2009 (9) SCC 1, wherein the Court had held that, reproductive choice of a woman is a fundamental right encompassed under Article 21 of the Constitution of India. The right to procreate as well as to abstain from procreation has been recognized as a colour of the right of personal liberty.

Findings of the Court

In K.S.Puttaswamy v. Union of India, 2017 (10) SCC 1, it was held by the Supreme Court that personal choice governing a way of life are intrinsic to privacy and one of the connotations of “privacy” includes decisional autonomy which comprehends intimate personal choices such as, those governing reproduction as well as choice expressed in public such as, faith or modes of dress.

In the year 2005, the Ministry for Health and Family Welfare, Government of India had issued “National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India” with regard to functioning of ART clinics in India, which states:

3.5.2 There would be no bar to the use of ART by a single woman who wishes to have a child, and no ART clinic may refuse to offer its services to the above provided…”

The Bench also took note of theThe Assisted Reproductive Technology (Regulation) Bill, 2020”, and opined that rights of a single woman for reproductive decisions and personal choices having been recognized as a constitutional right, there are instances where single/unwed women choose to have child through Assisted Reproductive Technologies (ART).

Hence, the Bench stated that when the identity of the donor was not disclosed to the petitioner there was no rhyme or reason in requiring the petitioner to provide the name of the father in the form prescribed for registration of birth and death. The Bench held that the concept of conceiving through ART had been foreign to this country a few decades back till the first “test tube baby” was born but now when the right of a single parent/unwed mother to conceive by ART had been recognized, prescriptions of forms requiring mentioning of name of father, the details of which is to be kept anonymous, was violative of the fundamental rights of privacy, liberty and dignity and it was for the State Government to bring out appropriate forms for registration of births and deaths, and also certificates of births and deaths, in such cases.

Verdict

In the light of the above, the Bench directed the State of Kerala to provide a separate form to such applicants which do not contain the field regarding the name and other details of the father. In so far as certificate of death was concerned, the Bench was of the view that it would suffice if in the column where the name of the father or husband is sought for, another entry could be made as that of the mother (like Father / Husband / Mother). Additionally, noticing that the petitioner was in the 8th month of pregnancy, the Bench directed that the necessary steps should be taken immediately.[X v. State of Kerala, WP(C) NO. 13622 of 2021, decided on 13-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Adv A.Aruna

For the Respondents: Govt. Pleader M.H.Hanil Kumar and S.Krishna, CGSC

Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J., addressed a bail application revolving around a matter concerning a 20-page suicide note.

Instant application was filed to seek bail in connection with FIR for the offences punishable under Sections 306, 465, 477, 120B and 114 of the Penal Code, 1860.

It was submitted that First Informant was a follower of Khodiyar Dham Ashram and the same was being run by Jayramdas Bapu. It was alleged that on 01-06-2021 he received a call that something happened to Jayramdas Bapu and on reaching the ashram it was noticed that he passed away.

It was alleged that a suicide note by Jayramdas Bapu was found from his room containing 20 pages in which deceased named three accused. It was stated in the note that the accused people caused mental and physical torture to bapu and had recorded the videos of bapu in compromising conditions with some ladies due to which bapu committed suicide.

Further, it was alleged that the death certificate certifying that the deceased passed away of natural death i.e. cardiac arrest with incorrect time of death issued by one Dr Kamlesh Kareliya of Dev Covid Care Center, was in fact issued at the behest of the applicant.

The role, which is sought to be alleged and played by the applicant, is that when he examined the dead body of the deceased, the applicant being a doctor, did not prescribe for the postmortem of the deceased and by issuing such certificate, he had tried to save or shield the main accused.

High Court while granting the bail to the applicant considered following:

(a) The role attributed to the applicants;

(b) The applicant is not named in the F.I.R.;

(c) The applicant is a doctor, who was treating the deceased since last several years;

(d) Prima facie, the F.I.R. reveals that there is no monetary ill-gain by the applicant;

(e) Prima facie, the ingredients of Sections 306, 107 as well as 465 of the IPC are not established in the case of the applicant;

(f) The suicide note, which is left by the deceased does not implicate the applicant in any manner and there are no allegations leveled against the applicant in this regard in the F.I.R.;

(g) Considering the facts of the case, the custodial interrogation of the applicant at this stage is not necessary.

Bench relied upon the following Supreme Court cases:

Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 and

Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694

In view of the above, the present application was allowed.[Nilesh Gopalbhai Nimavat v. State of Gujarat, 2021 SCC OnLine Guj 1056, decided on 16-07-2021]


Advocates before the Court:

MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1

MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR HIMANSHU K PATEL, APP for the Respondent(s) No. 1

Case BriefsSupreme Court

Supreme Court: After the Court was approached seeking direction to the Government to provide notified ex-gratia monitory compensation of Rs.4,00,000/- to the families of deceased who succumbed to COVID-19, the bench of Ashok Bhushan and MR Shah*, JJ has issued directions asking the National Disaster Management Authority to make uniform guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19.

According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further.

“… these deaths have affected the families from all classes – the rich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner.”

Noticing that it is the mandatory statutory duty cast upon the National Authority under Section 12 of the Disaster Management Act, 2005 to recommend guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life, the Court held that,

“… not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section 12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005.”

Here are the direction issued by the Court:

1) National Disaster Management Authority to recommend guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19, as mandated under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster – Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19.

However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration the observations made hereinabove, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005.

This needs to be done within a period of six weeks from today;

2) The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19.

“… it is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who died due to Covid-19. In the death certificate also, if a person has died due to Covid-19 and/or any other complications/disease due to Covid-19, it should be specifically mentioned in the death certificate.”

Such guidelines may also provide the remedy to the family members of the deceased who died due to Covid-19 for correction of the death certificate/official document issued by the appropriate authority, if they are not satisfied with the cause of death mentioned in the death certificate/official document issued by the appropriate authority; and

3) The Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts.

[Reepak Kansal v. Union of India, 2021 SCC OnLine SC 443, order dated 30.06.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Petitioner-in-person, S.B. Upadhyay, Sr. Adv., Reepak Kansal, Adv., Yadunandan Bansal, Adv., Nishant Kumar, Adv., Prince Arora, Adv., Shahnaz Rahman, Adv.,  Harisha S.R., AOR

For Respondent(s): Tushar Mehta, SG, Aishwarya Bhati, ASG, Rajat Nair, Adv., Amit Sharma, Adv., B.V. Balram Das, AOR, Chirag M. Shroff, AOR