In a unique judgment, Kerala High Court allowed a transgender couple to be referred to as ‘parents’ in the birth certificate of their child instead of ‘mother’ and ‘father’. Transgender couple Zia Paval and Zahad had filed a writ petition before the High Court seeking to be officially recognised as parents of their child on the birth certificate.
Ziya, a transwoman and Zahad, a transman, together had a biological child in 2023. They wanted to be represented as parents on their child’s birth certificate instead of being referred to as mother and father based on their genders assigned at the time of birth. The initial birth certificate named Zahad, an assigned female at birth, as the mother and Ziya, an assigned male at birth, as the father. The trans couple approached the High Court contending that the registration process violated their fundamental rights.
Hearing the petition, a single bench of Justice Ziyad Rehman described the case as fit for “social justice adjudication” or “social context adjudication”. The court said that the concerns raised by the petitioners were valid because the birth certificate in the prescribed form would cause serious difficulties to the child in future. It added that the law must evolve with the changing concepts of society and human life. “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,” the court said.
Exceptional cases require exceptional remedies: HC
The court observed that if the certificate sought by the petitioners advances their interests arising out of Constitution, and does not offend the rights of third parties, then it can be issued. “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,” the court said.
The court explained that the purpose behind creating birth certificates as per the Registration of Births and Deaths Act, 1969 and the Rules is to maintain the records regarding the births and deaths. It said that necessary modifications can be made in appropriate cases where the interests of 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,” Justice Rehman said adding that this being an exceptional case, exceptional remedies are to be explored and exceptional reliefs are to be granted.
The High Court allowed the petition and directed the concerned authority to issue a birth certificate with modifications by removing the columns for mother and father and mention the names of the peitioners as parents without referring to their genders.
