Since February 2006, the Supreme Court has been directing state governments to frame rules for compulsory registration of all marriages, irrespective of the parties’ personal law. In July this year, finding that its directive had not been implemented in many states, the apex court issued it afresh. Barely three months later, the court has addressed the states on this issue for the third time, now giving them three months to carry out its order. In this context, the reluctance of state governments to apply common rules for marriage registration to all communities and the demand of Muslim religious leaders to exclude their community from any such rules is being widely reported by the media.
Technically, rules having the effect of law can be framed by a government only under an authority delegated to it by proper legislation. The Hindu Marriage Act, 1955, empowers state governments to frame rules for registration (optional or mandatory) of all marriages governed by that Act. Accordingly, rules have been framed by most states, and now reframed by some to meet the apex court’s demand.
However, these rules cannot be made applicable to Muslims, Christians, Parsis and Jews, whose marriages are outside the ambit of the parent law.
For the Christians and Parsis, there are provisions for registration of marriages under laws applicable to them, viz., the Christian Marriage Act, 1872, and the Parsi Marriage Act, 1936, respectively. The case of Muslims is rather different, as Muslim marriage law has never been codified by an Act that could have made a provision for marriage registration.
In 1876, a Mohammedan Marriage and Divorce Registration Act was enforced in the province of Bengal, Bihar and Orissa, furnishing the facility of optional registration of marriages and divorces with government-appointed ‘Mohammedan Marriage Registrars’. The Act, however, clarified that neither non-registration would affect the validity of any marriage nor would mere registration validate a marriage that is otherwise invalid under Muslim law. This law remains in force in West Bengal, Bihar and Jharkhand, while Orissa had enacted it afresh in 1949. A similar law, called the Moslem Marriage and Divorce Registration Act, was enacted by the Assam legislature in 1935, which Meghalaya re-enacted after the creation of that state. No such law has ever been enacted in any other state.
There is an old central law called the Kazis Act, 1888, empowering provincial (now state) governments to appoint kazis for the purposes of helping Muslims with the solemnisation of marriages, etc. The Act, now in force in most states, makes it clear that the presence of a State-appointed kazi will not be mandatory for any marriage. Under this Act, kazis are appointed by some, but not all, state governments. In 1978, this Act was amended in Maharashtra to make it obligatory for official kazis to maintain proper records of marriages that they may be invited to solemnise by the parties or their guardians in their discretion.
The only laws under which state governments can frame and notify rules for registration of Muslim marriages are either the central Kazis Act, 1888, or any of the local Mohammedan Marriage and Divorce Registration Acts referred to earlier. The present version of none of these Acts, however, empowers any government to make registration of marriages compulsory. For this, these laws will have to be suitably amended by the competent legislature.
Apart from official kazis appointed under the Kazis Act, private kazis operate all over the country. Although, under Muslim law, the presence of a kazi is superfluous and the parties themselves can comply with formal requirements for marriage, in India it is customary to have every marriage solemnised by a kazi. The private kazis religiously maintain records of the marriages they solemnise and issue nikahnamas (marriage deeds) to the parties. All such records and documents are legally admissible as evidence in civil courts. The claim of Muslim religious leaders that the community already has an effective system of marriage registration thus cannot be rubbished. But, by an amendment in the Kazis Act, all kazis may be required to compulsorily transmit their records to the state registry; and this will not clash with Muslim law.
In Muslim society, what is more important than registration of marriages is registration of divorces. Unlike marriages, talaqs (pronounced without the involvement of a court or any other authority) are never registered with a kazi and no kazi keeps records of talaqs. The provision of the aforementioned state laws for registration of divorces is also not in use. In view of the system of unofficial records of marriages maintained by the kazis, a Muslim may not easily deny the fact of his marriage. But in order to defeat the claims of deserted wives, Muslim men do unscrupulously claim to have divorced them at some unknown time in the past. Compulsory registration of talaqs may put an end to this unhealthy (and un-Islamic) practice.
A more effective way of ensuring registration of marriages and divorces will be to enact proper legislation, rather than expecting state governments to remedy the evils by executive action. Since, personal laws are in the concurrent jurisdiction of the Centre and states, parliamentary legislation on the subject would be an ideal choice.
(Tahir Mahmood is Member, Law Commission of India )