Opinion
Compulsory Registration of Marriage
by 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 solemnization of their marriage.
This type of extra and
unwanted interference in the religion by the clergy needs to be nipped
in the bud.
If we peruse 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
solemnization of marriage as claimed by the clergy. People should not be
cheated by such religious leaders. It is high time to come out of the
grip of these types of religious preachers who 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 solemnization of marriage according to ones
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 solemnization of marriage. The
proposed bill respects and honours the religious sentiments of the
populace and hence 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 the 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 solemnization of
marriage but only prescribes the procedure of getting the marriage
registered within 30 days of the solemnization. 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 favor 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 solemnized 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 the 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. Catena of such cases has 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 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 arise to the occasion and
take appropriate steps to bring the bill in the next session of the
parliament.
December 30, 2007
Abdul Hafiz Gandhi is Research Scholar,
Centre for the Study of Law & Governance, Jawaharlal Nehru University,
New Delhi.
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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. 