Child born before divorce: Put biological father’s name in birth certificate, HC tells NMMC

The Bombay High Court has directed the Navi Mumbai Municipal Corporation to issue a corrected birth certificate for a child born to a married woman from her lover after being separated from her husband but before being formally divorced. The court has asked the civic body to replace the name of the woman's ex-husband with that of the woman's lover. The woman had approached the court after the civic body refused to make the change. The court cited a Supreme Court ruling from 2015 stating that corrected birth certificates must be issued in such cases.

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Mumbai: The Bombay high court on Tuesday directed Navi Mumbai Municipal Corporation (NMMC) to issue a corrected birth certificate for a child born to a married woman from her lover after being separated from her husband but before being formally divorced. The court has asked the civic body to replace the name of the woman’s ex-husband from the birth certificate with that of the woman’s lover.

The woman had approached the high court after the civic body refused to replace the name of her ex-husband with the biological father of the child. In her petition, the woman stated that she had married a man in March 2017 and happily lived with her husband till June 2018, when cracks appeared in their relationship and soon the spouses started residing separately. They eventually decided to go for divorce by mutual consent and got a divorce decree on February 8, 2021.

However, after starting to reside separately from her husband, the woman had a physical relationship with another man and gave birth to a baby boy on July 10, 2020, before her divorce was finalised.

However, at the time of her delivery, it was her husband who took her to a private hospital in CBD Belapur in Navi Mumbai and while recording their details gave his own name as the father of the woman’s child. The hospital record resulted in the issuance of a birth certificate of the child with the name of her husband as his biological father.

After receipt of the birth certificate, the woman in December 2021 approached the NMMC and sought correction in the birth certificate of her son and sought her husband’s name replaced by the name of his biological father.

The woman moved the judicial magistrate court in CBD Belapur after the civic body informed her that there was no legal provision for changing or correcting a birth certificate. She moved to the high court after the magistrate court rejected her plea on April 23 this year. She also filed an affidavit from the biological father of the child, supporting her.

Before the high court, her counsel, Dr Uday Warunjikar pointed out the Supreme Court ruling of 2015 holding that whenever a single parent or an unwed mother applies for a birth certificate the only requirement should be that he or she should furnish an affidavit to that effect and the corrected birth certificate must then be issued.

The division bench of justice Gautam Patel and justice Kamal Khata said the civic body could not deny issuing a corrected birth certificate, as the apex court judgement was binding on all and directed it to replace the name of the woman’s ex-husband by the name of the biological father of her son.