Issue 50 Vol III, October 31, 2007

L A W  &  J U S T I C E

Confounding Compulsory Registration of Marriages
Joginder Singh Toor

THE direction issued by the Supreme Court of India on February 6, 2006, for compulsory registration of marriages pursuant to the United Nations Convention on Elimination of All Form of Discrimination against Women, adopted in 1979, to which India is a signatory went unheeded. Many questions as to the will and competence of States and even the Union of India to address themselves to social problems even after agreeing to it in a world forum, not only perturbed many a mind, the authority of the highest court of the country was undermined too. The imperativeness of having a marriage registered perceived from startling facts during the hearing of a simple application for transfer of a case in which the factum of marriage was recklessly denied by the husband led to the issuance of a direction:-

“(i) Evolve procedure within 3 months from today (6.2.2006) by amending rules (ii) appoint officers for the purpose who shall register marriages and maintain a register of marriages”

This evoked little response, compelling the Supreme Court to reiterate the direction again on October 25, 2007 requiring compliance within other three months.

Before issuing direction, a notice served on the Union of India and all the States revealed astonishing facts.

In exercise of powers conferred on the Union of India and the States in the list iii (the Concurrent list) on 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 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 Jains, Buddhists and the 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.

As regards the Muslim marriages fives States; Assam, Bihar, West Bengal, Orissa and Meghalaya had 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 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 Mohammedans the marriage is recorded in a ‘Nikah Nama’ a document prepared in traditional form reciting the amount agreed as ‘Mehar’ and the consent of the parties having been given in presence of or by parents/guardians/authorized persons and attested by the Qazi, the witnesses. The community may not agree to have the marriage registered in any other way except when they require it for immigration or other purposes.

All that the law can provide is, that the ‘Nikah Nama’ is given a presumption of valid marriage having taken place if its record is maintained in a regularly maintained register of marriages by an authorized person.

Chhattisgarh, Goa, Karnataka, Mizoram, Rajasthan, Sikkim, Tamil Nadu and Tripura have taken some steps in making rules in compliance with the direction. West Bengal has made some changes in existing laws.

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 make registration of marriages compulsory. In Goa, Daman and Div, the law of marriage enacted in 1911, in accordance with Article 1075 to 1081 of the Portuguese (civil) code making registration of marriages compulsory is still in force.

The efforts of National Commission for Women before the Supreme Court seeking compulsorily registration of all marriages need to be appreciated. In order to prevent child marriages, check bigamy, polygamy and marriages without consent and sale of children particularly minor girls into marriages by greedy parents, in their opinion, could be prevented. Above all it will absolve the women to prove the fact of marriage in the event of denial.

Under the prevailing laws of India a couple having lived together in the nature of relationship of marriage even after producing children are not considered as validly married, unless there is a proof of marriage ceremony. In absence of which the marriage is not valid but off-spring are considered as legitimate children. In some foreign countries such as Canada and the U.S.A. a couple’s living together as husband and wife for a considerable period say two or three years gives rise to a legal presumption that they are married even if there was no ceremony or marriage registration.

Now with the passing of Protection of Women from Domestic Violence Act, 2005, “two persons living together or having lived together in a shared household when they are related by consanguinity (blood relations including cousins, uncles), marriage or through a relationship in the nature of marriage…..” are considered to be in “domestic relationship” giving rise to certain rights and obligations inter-se but this does not give rise to a legal presumption of a marriage.

The children born of such a relationship have been given legal rights, equal to that of a son or a daughter and have got a legal approval and protection. They are likely to get social sanction also.

The practical difficulties arising out of India’s variety of cultures, religions, customs and edicts are real hindrance in the non-compliance of directions conceiving ideal solutions like Universal Civil Code and Universal Law of marriages or registration thereof. Practical solutions in diverse conditions are to be found out. The problem is complex, worst confounded demanding people’s involvement.

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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