L A W  &  J U S T I C E

Another Supreme Court Directive
Awaits Implementation
Joginder Singh Toor

A direction by the Supreme Court of India issued an year ago, pursuant to United Nations Convention on Elimination of all forms of discrimination against women adopted in 1979, to which India is a signatory, goes unheeded, raising many questions.

A simple application by wife against her husband, for transfer of the case, startled the Supreme Court. The very fact of marriage is denied, not in one, but in numerous cases in the country. Could this at least be stopped?  Was the question:  The United Nations 1979 Convention to eliminate all kinds of discrimination against women, suggested that registration of marriage be made compulsory all over the world.  India, although signed the Convention on the 30th of July 1980, but made no effort in this direction.  While ratifying the convention in 1993, India made two declatory statements and one reservation expressing it’s practical difficulty “in a vast country like India with it’s variety of customs, religions and level of literacy” in making the registration of marriages compulsory.

The facts received, on notice issued to all the states requiring to inform the Supreme Court, the provisions if any existing in each state on the registration of marriages and the steps being taken in this regard disclosed interesting information.  In exercise of powers conferred on the union of India and the states in the list iii (the Concurrent list) of 7th schedule of the constitution of India empowering both of them to legislate on “(5) marriage and divorce”.  “(30) Vital statistics including registration of births and deaths”.  Only 4 states had taken legislative measures in this direction.  The Bombay registration of Marriages Act 1953 (applicable to Maharashtra and Gujarat), the Karnataka Marriages (Registration and Miscellaneous provisions) Act 1976, the Himachal Registration of Marriages Act 1996, and the Andhra Pradesh Compulsory Registration of Marriages Act 2002 were the only existing laws, directly addressing the problem.

The union of India, equally competent to legislate on the subject had not taken any step even after adopting the 1979 convention and rectifying the same in 1993.   The Government of India seems to be unjustifiably, content with the provisions of Hindu Marriage Act 1955, under section 8 of which, the State Governments have been authorized to make rules for the facilitation of proof of Hindu marriages, “providing that the parties to such marriage, may have the particulars relating to their marriage entered in a Hindu marriage register kept for the purpose”.  The State Governments are also authorized to make registration of Hindu marriages compulsory and may also provide punishment for violation of the provision.  The Act is not universal in nature.  It applies to Hindu marriage including Jain, Buddhists and Sikhs.  Only the State Governments have framed rules for registration of marriages and certain officers are designated as “Registrar of marriages”, but the registration is not compulsory, as such there are no punitive measures provided.

The special Marriage Act 1954, although applies to all religions and provides for the registration of marriage as a consequential measure.  The resort to the special Marriage Act is only by those who have difficulty in conventional marriages under the personal law, requiring the parties to marriage to be of the same religion or by those who marry against the wishes of their respective parents.

Five States of Assam, Bihar, West Bengal, Orissa and Meghalaya have passed Acts for registration of Muslim marriages.  Assam passed the Assam Muslim Marriages and Divorce Registration Act in 1935, Orissa in 1949, and West Bengal is continuing with Bengal Mohammedan Marriages and Divorce Registration Act 1876.  Uttar Pradesh has recently announced a policy of registration of all marriages by local Panchayats.  There is no legislation or even a measure for compulsory registration of Muslim marriages.  Even in J.K an Act was passed making registration of Muslim marriages compulsory in 1981, but the Act has not been enforced so far.

Among Christians, the registration of a marriage is compulsory under Christian Marriage Act 1872.  Entries are made in a register soon after the marriage in a church.  The Parsi Divorce and Marriage Act 1936, also makes registration of marriages compulsory.  In Goa, Daman and Div, the law of marriage made in 1911, in accordance with Art 1075 to 1081 of the Portuguese (civil) code making registration of marriages compulsory is in force.

The effort of National Commission for Women, seeking to have all marriages compulsorily registered, in order to prevent child marriages, to check bigamy/ polygamy/marriages without consent and sale of children particularly minor girls into marriages by greedy parents above all to absolve the women to prove the fact of marriage in the event of denial, from the entries in the marriage register to which the presumption of the truth is to be attached, have resulted in persuading the Supreme Court of India in issuing direction to the states and the Central Government to take steps for (i) evolving procedure within 3 months from today.  (14-2-2006) by amending rules, if any, or framing new rules, (ii) appoint officers for the purpose who shall register the marriages, and maintain a register of marriages”.

It has not preceded any further. The states, for reasons political and religious are finding ways how to implement or successfully avoid the direction.  The latter would no doubt be another unfortunate event of utter disregard of the directions of the highest court of the country.

[Jogindersingh_toor@yahoo.com]

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