By Dr. Md. Faiyaz Khan,
India is a signatory to the convention on Elimination of All forms of Discrimination against Women Which was adopted by U.N. General Assembly in 1979 and ratified on July 9th, 1993. Under this convention India agreed in principal that compulsory registration of marriages was highly desirable, nevertheless, she expressed reservation by stating that to go in for compulsory registration like India with its variety of customs, religions and level of literacy.
Notwithstanding this expressed reservation the supreme cont in Seema v Ashwani Kumar[1] has “noted with concern that in large number of cases some unscrupulous persons are denying the existence of marriage [by] taking advantage of the situation that in most of the states there is no official record of the marriage” To meet this malady the Supreme Court has invoked with concept of vital statistics as reflected in entry 30 read with entry 5 of list III (concurrent list) of the seventh schedule of the constitution. The court sees the provision of registration of marriages as a part of vital statistics, as important as the registration of births and deaths and on this count the legislature both at the levels of centre and state is empowered to enact laws for promoting the legislature to move in this direction, the court has wished to evolve certain broad guidelines.
How ever for laying down the suitable guidelines in the matter of registration of marriage on the basis of ground realities, notices were issued. By the Supreme Court to the various states and union territories and to the solicitor General of India with two fold objectives. One for eliciting their views on the desirability of compulsory registration of marriages, and two, for getting the status report about the hitherto adopted legislative and administrative measures in the direction of registration of marriages.
On the issue of desirability the Supreme Court has noted the response to the effect that “without exception all the states and the Union Territories indicated their stand to the effect that registration of marriages is highly desirable. On the point of compulsory registration of marriages however, the Supreme Court has further noted that in the opinion of the states and the Union Territories such a measure “would be a step in the right direction for the prevention of child marriages still prevalent in many parts of the country.
From the compilation of the information received in respect of relevant legislation hitherto enacted by the states and union territories, the picture presented before the Supreme Court in as under, most of the states have framed rules regarding registration of marriages but with varying degree of emphasis. The states of Andhra Pradesh, Himachal Pradesh, Karnataka and Gujarat provide for compulsory registration of marriages for all within their respective state territories.
Pursuant to the provisions of section 8 of the Hindu Marriage Act of 1955, the State of UP has framed the UP Hindu Marriage Registration Rules, 1973, and since then marriages are being registered under those rules, However, according to the affidavit filed before the Supreme Court, the state government has announced a policy of compulsory registration of marriages by the panchayats, and maintenance of such records along with the record of births and deaths.
Some Acts regulating marriages of the members of certain communities like Christians and Parsis provide for compulsory registration. The Indian Christian Marriage Act, 1972 makes it compulsory for the registration of marriages that are performed under the provisions of this Act. For instance, under this Act the relevant entries are made in the marriage register of the concerned church soon after the marriages and the signatures are appended by the bride and the bridegroom, the official priest and the witnesses as a token of correctness of those entries. Likewise, the Parsi Marriage and Divorce Act, 1936, make registration of marriages compulsory for all Parsis. In the territories of Goa, Daman and Diu, registration of marriages continues to be compulsory under the old Law of Marriages (articles 45 to 47) that came into effect way back in the year 1911.
On all India basis, the Special Marriage Act, 1954 which applies to Indian citizens irrespective of religion, makes the registration of all marriages compulsory that are performed under this Act.
The States of Assam, Bihar, West Bengal, Orissa and Meghalaya appear to provide for voluntary registration of Muslim marriages. Registration of marriages of the Hindus that are solemnized under the Hindu Marriage Act of 1955 is optional or voluntary, because the provision contained in section 8 of the Act dealing with registration clearly provides that non-registration of marriage will not affect its validity in any way. However, sub-section (2) of section 8 empowers the state governments to make with regard to registration of marriages. If the state government is of the view that such registration should be compulsory, it can so provide. In that event, the person contravening any rule shall be punishable.
In the state of Jammu and Kashmir, for the Hindus, who are governed by Jammu and Kashmir Hindu Marriage Act, 1980, at present no rules have been framed for registration of their marriages. However, the Act does empower the state government to make rules enabling the parties to have their particulars relating to marriage entered in such a manner as may be prescribed for facilitating proof of such marriages. As regards the Muslim, Jammu and Kashmir Muslim Marriages Registration Act, 1981, provides that marriages contracted between Muslim after the commencement of the Act shall be registered in the manner provided there in within 30 days from the date of conclusion of Nikah ceremony. However, this Act has not been enforced so far. The Christians in the state of Jammu and Kashmir are governed by the Jammu and Kashmir Christian Marriage and Divorce Act, 1957. This Act provides for the registration of marriages solemnized by the minister of religion and marriages solemnized by or in the presence of marriage registrar, without stipulating whether or not such a registration is compulsory2.
In the light of this presented picture, the Supreme Court has inferred that though most of the states have framed rules regarding registration of marriages, yet such a registration is not compulsory in several states. Compulsory registration of marriages would be “in the interest of society”. “If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided”. In this respect, the Supreme Court endorsed the view of the National Commission for Women, which contended that in most cases non-registration of marriages affects the women to a great extent compulsory registration of marriages would be of critical importance to various women related issues such as:
(a) Prevention of child marriages and ensuring minimum age of marriage.
(b) Prevention of marriages without the consent of the parties.
(c) Checking illegal bigamy/ polygamy.
(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.
(e) Enabling widows to claim their inheritance rights and other benefits and privileges which they are entitled to after the death of their husbands.
(f) Deterring men from deserting women after marriage.
(g) Deterring parents/ guardians from selling daughters/ young girls to any person including a foreigner under the garb of marriage.
Although registration of marriage per se is not the determinative factor regarding the validity of marriage, yet it gives rise to a rebuttable presumption of marriage. Stated conversely, “the presumption which is available from registration of marriage would be denied to a person whose marriage is not registered.” Registration is of “a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered.” In view of such manifest advantages, the Supreme Court has concluded that “we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States where marriage is solemnized.” Accordingly, the court has directed all the states and the central government to take certain steps, which may be abstracted as follows:
(i) The procedure for registration in the shape of appropriate rules should be notified by respective states within three months from today, that is from the date of the judgment – February 14, 2006 – by giving due notice to the public.
(ii) The officer appointed under the said rules of the states shall be duly authorized to register the marriages by incorporating all the necessary details.
(iii) The consequences of non-registration of marriages or for filing false declaration shall also be provided for in the said rules.
(iv) As and when the central government enacts a comprehensive statute, the same shall be placed before the Supreme Court.
(v) The counsels for various states and union territories shall ensure that the directions given by the court in this case are carried out immediately.
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Md. Faiyaz Khan is a lecturer of law at Patna University.
1. AIR 2006 SC 1158
2. See ss. 26 and 27 of the Act of 1957