Compulsory registration of marriage from legal perspectives: The Indian context
Abdul Hafiz Gandhi
Religion has come to be used for pursuing personal agenda. This is not a new phenomenon. In the past also many divisive forces have used religion for their ulterior motives. The irony of the matter is that those who claim to be torch-bearer of faith are misusing it for monetary gains. At this crucial juncture I am reminded of the statement made by Mohd. Maqsood Imran, Naib Imam of Jamia Masjid, Bangalore that appeared in a section of media. He stated, while answering the question about the Supreme Court direction for states to enact rules or law for compulsory registration of marriage, that he has no objection if before registration with the marriage registrar the boy and girl first seek approval from the respective mosque before solemnisation of their marriage. This type of extra and unwanted interference in the religion needs to be nipped in the bud.
If we pursue the Islamic requirements of marriage, the condition imposed by Naib Imam does not figure anywhere in it. Marriage is a purely civil contract in Islam where certain verses of the holy Quran are recited. If a boy and girl are of sound mind and have come to the age of majority (puberty) they could get into the contract of marriage. The element of free consent forms the bedrock of this contract. One fails to understand where is the requirement of getting approval from the mosque before solemnisation of marriage as claimed by the clergy. It is high time to come out of the grip of those project Islam in bad shape and interpret it as per their whims and fancies.
Quran ordained people to reduce to proper writing their mutual transactions, howsoever small they may be. In the testing and difficult times when foreigners from middle-east come to India to dupe the innocent girls, the need of not only registration of marriages but of divorces irrespective of the religion becomes inevitable. I sometimes wonder how religion would be affected by the registration of marriage or divorce. The proposed law will only provide for the procedure of registration after the solemnisation of marriage according to one's custom, traditions and personal laws. The bill drafted by the National Commission of Women (NCW) in 1995 lists the procedure and mechanism of registration within 30 days after the solemnisation of marriage. The proposed bill respects and honours the religious sentiments of the populace and hence the bill attempted no interference with the religious traditions and requirements of marriage.
The whole debate surrounding the compulsory registration cropped up and came in the public domain when Supreme Court directed all states and Union territories on 14 April, 2006 to notify rules for compulsory registration of marriages. Although the intentions of the judiciary are fair but this particular direction suffers from constitutional deficiency. Instead of directing the state governments to notify rules, it might have requested the Parliament to come up with a law to regulate the registration of marriages. The request by Supreme Court would have been entirely within the constitutional intent and spirit. Constitution of India clearly separated the roles of each organ of the state. The law making function is assigned to the parliament and state legislatures. Therefore, keeping in view the distinction between law making and interpretation of law, it would have been expedient if Supreme Court had requested the parliament to bring a law making registration of marriages compulsory.
Many states in India do not have laws dealing with marriage registration. The history of laws governing registration of marriages dates back to 1886, when Birth, Death and Marriage Registration Act was passed by the erstwhile British colonial powers. This law could not make much headway with regard to registration of marriages but it was successful with registration of birth and death. Before this, Special Marriage Act, 1872 and Christian Marriage Act, 1872 were enacted, which provided for registration. Long after in 1953, the erstwhile State of Bombay promulgated a law, 'Bombay Registration of Marriages Act' for compulsory registration of marriage. It says non-registration will have no effect on the factum of validity of marriage. The registration would not make an invalid marriage valid. Similarly non-registration would not make a valid marriage as invalid.
In the same vein, Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1973, Himachal Pradesh Registration of Marriages Act, 1996 and Andhra Pradesh Compulsory Registration of Marriages Act, 2002 provided for the compulsory registration of marriages. In five Indian states there are provisions for voluntary registration of Muslim marriages. These states are Assam, Bihar, Meghalaya, Orissa and West Bengal. In Jammu and Kashmir Section 3 of J&K Muslim Marriages Registration Act, 1981 necessitates that marriages contracted between Muslims after the commencement of this Act shall be registered in the manner provided therein within 30 days from the date of conclusion of Nikah ceremony. The law in J&K made the registration of marriage compulsory.
The proposed bill by NCW has no different provisions than the erstwhile Bombay law. The bill does not interfere with the solemnisation of marriage but only prescribes the procedure of getting the marriage registered within 30 days of the solemnisation. Certain religious leaders irrespective of the religious affiliations are arguing that registration is going to interfere in the religious tenets and that is why they are in favour of voluntary registration of marriage. My answer to this is: if you think that registration is interfering in the basic tenets of religion then why allow voluntary registration? When voluntary registration is not interfering, then compulsory registration is also no threat. Registration in no way disrespects the religious tenets. Moreover, voluntary registration proposition is bound to fail as has been our experience with voluntary registration provision in Section 8(2) of the Hindu Marriage Act, 1955. Very negligible couples came forward to have their marriages registered.
Law with voluntary registration is like having no law at all. Lessons must be learnt from the countries like Bangladesh, where laws for compulsory registration of marriage are in vogue since last three decades at least. Quick perusal of laws relating to marriage will reveal that Egypt, Iran and Pakistan have effective provisions and mechanisms for compulsory registration. In Pakistan, the Muslim Family Law Ordinance, 1961 in section 5(1) says that every marriage solemnised under the Muslim law shall be registered in accordance with the provisions of this ordinance. The same law is applicable to Bangladesh as it was part of Pakistan in 1961 before its independence in 1971. No attempt has been made to repeal this law and people of Bangladesh are happy to be governed by the ordinance of 1961.
The efforts of Kerala and Maharashtra to come up with compulsory registration of marriage laws need to be appreciated. There is no denying the fact that absence of vital marriage document to be issued by the government under the proposed law has caused havoc to the lives of thousands of women. Indeed, this law will lead to reduction in the number of fake marriages entered with poor, helpless and innocent girls by foreigners in India. Many such cases have come to public knowledge. Really, there is an urgent need of a stringent law to deal with this menace.
In my view Supreme Court must have requested the Parliament to enact a central legislation on compulsory registration of marriages. This subject is covered by entries 5 and 30 of the concurrent list of the seventh schedule of the Constitution. Entry 5 talks of marriages and divorce whereas entry 30 empowers the parliament and state legislatures to make laws for 'vital statistics' including registration of birth and death. These two entries fully empower the parliament to enact a central legislation on the registration of marriages. The registration of marriage and divorce will come within the meaning of 'vital statistics'. There is no constitutional hiccup for framing a common law of registration for all communities irrespective of religious affiliations. The central legislation becomes expedient and necessary in the situation when separate laws are prevalent for different communities in various states.
The other problem is that states need to frame laws for every religion separately. The governments of all states have to make rules under section 8(2) of Hindu Marriage Act, 1955 for compulsory registration of Hindu marriages. Similarly, rules need to be framed under Christian Marriage Act, 1872 and Parsi Marriage Act, 1938 for Christians and Parsis respectively. A law is to be made freshly for Muslims because at present there is no codified law for registering Muslim marriages. The whole exercise is so cumbersome that lot of confusion would arise in different laws of different states. Suppose a person from Punjab wants to marry a girl form Tamil Nadu having different laws, certainly parties would face hardship. So, why not to enact the common law in a secular matter like this.
The only solution is to have a central legislation. The parliament has the power to enact such law under the concurrent list. If certain groups have objection with the NCM draft that can be sorted out by amending the proposed bill but to say that compulsory registration of marriage interferes in the basic tenets of religion is untenable. Time has come to shed our parochial views about religion. Women and children are suffering unendurable hardships, they are crying hoarse for rescue. I know that registration of marriages and divorces is not a panacea of all the ills afflicting the society but certainly it would go a long way in addressing the grievances of the suffering women and children.
The marriage certificate issued by the marriage registrar can be used as evidence in the court of law for proving the factum of marriage. The in-laws of the widow deny the factum of marriage in most of the cases to usurp the property of the deceased husband. If marriage is registered, it will become next to impossible to deny the marriage by the in-laws. Husband or wife hardships will reduce to the minimum while accompanying their spouse to the foreign countries. If a person dies without nomination for the bank deposit or life insurance policy, marriage certificate would be the proof for claim.
Government could provide in the law dealing with compulsory marriage registration that for the employment in public or private services the showing of marriage certificate is a must. This will give a fillip to the efforts of the government to register marriage. Marriage certificate as one of the requirements for the married persons to get job would compel him or her to register their marriage.
The people, media, politicians, religious leaders and civil society must welcome the effort of the NCM to have come forward with the draft legislation. I hope central government would rise to the occasion and take appropriate steps to bring the bill in the next session of the parliament.
The writer is research scholar, Centre for the Study of Law and Governance, Jawaharlal Nehru University (JNU), New Delhi.