A Supreme Court order in February 2006 had directed all state governments to make marriage registrations compulsory across the country. The court, comprising Justices Arijit Pasayat and S H Kapadia, noted that "in a large number of cases, some unscrupulous persons are denying the existence of marriage, taking advantage of the situation that in most states there is no official record of the marriage".
All states are now required, within three months, to frame and notify rules that put in place legal mechanisms to facilitate compulsory registration of marriages for all communities in India. This well-intentioned judgement derives some force from CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), of which India is a signatory. Article 16(2), CEDAW, stipulates compulsory registration of marriage. The Indian government had expressed the reservation that "though India is agreed on principle that compulsory registration of marriages is highly desirable, it is not practical in a vast country like India with its variety of customs, religions and level of literacy".
This is not the first time that the Indian Supreme Court has taken such a proactive stance on a function that is traditionally seen as being outside the domain of courts. In cases where citizens' fundamental rights were involved, the apex court had put in place various laws through directions, and rightly so. In the celebrated case of Visakha vs State of Rajasthan, for example, the Court put in place guidelines to tackle sexual harassment at the workplace until an adequate law was passed by the legislature.
In the case of marriage registrations, however, while the intentions of the Court are laudable, the effects are debatable. This is not an issue like sexual harassment, where serious transgressions from the traditional doctrine of separation of powers are warranted because of the need to immediately put in place at least short-term regulations.
It is difficult to look at compulsory registration of marriages in the same light. In the medium-term, how will the Court's order benefit women? Let us consider the National Commission for Women's (NCW) affidavit to the Supreme Court in 2005. It states that compulsory registration of marriages will: prevent child marriages; prevent marriages without consent of the parties; check bigamy/polygamy; enable married women to claim their right to live in the matrimonial house; enable women to claim maintenance on divorce or separation; enable widows to claim inheritance rights to their husband's property; deter husbands from desertion; deter guardians from selling young girls under the garb of marriage etc.
How realistic are these claims? Do they not exaggerate the power of the law and legal instruments?
Currently, there is a blanket ban on child marriage; there are serious penal provisions to check bigamy; there are statutory provisions to enforce maintenance for women and children; and affirmative inheritance rights for women through statutes. These have had little impact in real terms. What convinces the NCW that compulsory registration of marriages will succeed where none of these laws have?
It is undeniable that, in an ideal situation, where laws are complied with stringently, compulsory registration would work towards the interests of women. However, critical legal anthropology has demonstrated the limited impact of laws or legal regimes on communities. For instance, in Jammu and Kashmir, there exists a law that provides for compulsory registration of marriages contracted between Muslims within 30 days of the conclusion of the 'nikaah' ceremony. However, the court itself admits, "the Act has not been enforced".
Admittedly, this reasoning can be argued with. Notwithstanding difficulties in implementation and chances of assimilation by communities, a standard may well be developed and imposed for ethical reasons. But what ethical standard does the present rule aspire to? A rule that strategically seeks to effectuate the substantive rights of women should ensure that it does not act to the detriment of women's interests.
The compulsory registration of marriages could, however, become the bane of women who are in unregistered marriages. These women would be denied the presumption of marriage - which is available to those in registered marriages. This non-availability of 'presumption' would be the blanket of suspicion that subordinate courts will cast over women who claim their legitimate rights arising from an unregistered marriage, especially so in maintenance and bigamy cases.
Outside the courts as well, there are many other avenues where women could find themselves at a significant disadvantage. Women applying for the inclusion of their names in their husband's ration cards will be asked for registration certificates. Women, especially those who have been deserted or abandoned by their husbands, will be unable to produce marriage certificates when they wish to admit their children in school. Especially in the many villages where officials conduct their business like fiefdoms, this could well be another tool used to harass women.
At least in practice, the Court's order has the potential to work strongly against women who, for a number of extraneous social reasons, have not had the opportunity to register their marriages.
And this is precisely why there is the need for wider public debate on the matter. There are obvious advantages to registering a marriage, which can still be availed of in the optional registration regime that currently exists. But there is a need to think collectively and publicly - as opposed to working through judicial fiats - before we decide to make marriage registrations mandatory. What do they say about throwing the baby away with the bath water?