Consentia on Multidisciplinary Research

REGISTRATION OF MARRIAGE MADE MANDATORY THROUGH OPTIONAL MEANS

This paper discusses about Advantages of registration of marriages, the current laws relating to registration of marriages and the ways of making people to come forward for voluntary registration of marriage without making it mandatory.

In India, to govern personal matters relating to marriage, matrimonial remedies, guardianship, adoption, succession to property etc., there is no National Law; a law which is uniformly applicable to everyone. Different communities live in India and each and every community is governed by its own personal law. As a result we have a plethora of personal laws governing different communities. The laws relating to marriage and divorce under these personal laws are entirely different. Registration of marriage or divorce is not compulsory under most of these personal laws.

The consequences of non-registration of marriages:

The consequences of non registration of marriages are many:–

1.  In cases of Bigamy it becomes difficult to prove that it is indeed a bigamous marriage.

2.  Maintenance cases fail without proper proof of marriage.

3.  Several problems arise in cases of NRI Marriages.

4.  Property rights of women and children affected.

5.  Child marriages go unnoticed and un-prevented.

In all the above cases Women and children are the worst affected.

Cases of Bigamy

 

If a man during the subsistence of a valid marriage enters into another marriage he commits the offence of Bigamy[1] (if monogamy is the rule under his personal law). He can be punished for the offence of bigamy[2] only when it is proved that both are validmarriages. In most cases, establishing bigamy becomes very difficult as there is no valid proof for marriage. The wife of the first marriage goes without proper remedy if she cannot proof the second marriage. The wife of the second marriage goes without any remedy even if she was totally unaware of the first marriage of her husband. She will not get any status or rights of a wife. Though in India Bigamy is a crime under most personal laws, the husband who committed the crime goes without any punishment, when there is no clear proof of both the alleged marriages. The man can avoid the consequences by simply saying either the first marriage is invalid or the second marriage is invalid, which indeed has happened in several cases.

Cases of Maintenance

If there is no proper evidence of the marriage, serious hardships can be faced by women, in obtaining maintenance from the husband. When women file for maintenance, the erring husbands argue that the woman was never legally wed to him and point to the lack of registration papers to make their point.  If she fails to prove the marriage or fails to prove that it is a valid marriage she is not entitled for maintenance. If the husband takes another wife during the subsistence of a valid marriage, the second marriage is void and he will be committing the crime of bigamy.  The irony is that when there is no clear proof, the criminal will go scot free, and victim will have to face punishment. The  victim; the wife, who is not able to proof that there is a valid marriage will not get any status or rights and will be forced to carry the social stigma that comes along with being thrown out of matrimonial home. When there is clear proof the criminal husband will be punished, but the victim will also be punished. Again the status of the victim wife is the same. She will not get any status, any rights and should also carry the stigma of being a concubine. This is what that has happened to Narinder Kaur.  After marrying and living with M.S. Chawla as his wife for 14 years and having two daughters through him, she was deserted by her husband. Only after that did she come to know that her husband was already married to another woman called Amarjeet Kaur. At the time of her marriage, Chawla had professed himself a bachelor. Narinder Kaur filed a criminal case of bigamy against her husband and Chawla was convicted. But when she filed a petition for maintenance for herself and the children it was dismissed by the trial court on grounds thatNarinder Kaur Chawla was not M.S Chawla’s legally wedded “wife” and was therefore not entitled to file under the Hindu Adoption and Maintenance Act. On appeal the Delhi High court granted an interim maintenance of Rs. 400/- per month to the wife. Division Bench of the High Court increased it to 700/- per month and then the Supreme Court increased it to 1,500 per month. Narinder Kaur had to run from pillar to post to get maintenance for herself and her two daughters.

The husband was convicted for offences punishable under Sections 494/495 of Indian Penal Code, 1860 and sentenced to undergo Rigorous Imprisonment for three years with fine of Rs. 5000/- and in default of payment, thereof, further simple imprisonment for three months. But on appeal the court of Sessions reduced the sentence from three years rigorous imprisonment to 14 days simple imprisonment. When this was challenged by Narinder Kaur, the Delhi Court fixed it as simple imprisonment for a period of 1 year. In the above case it was not the husband who suffered for the mistake he committed.  First wife was deserted by him.  Second wife who married him without the knowledge of his first marriage had to run around to prove her husband’s guilt and to get a skimpy amount of maintenance for herself and her children.  The husband after making life of two women miserable escaped the clutches of law with a scanty punishment of simple imprisonment for a period of 1 year.

 

NRI Marriages

Indian men living and working overseas in many cases prefers to marry a girl from India.  Sometimes they are forced into marrying an Indian girl by their families. In these cases if the marriage is not properly registered the wife of the marriage is affected in many ways.   No foreign embassy or consulate grants visa to a spouse without proof in the form a marriage certificate.  In India in most of the communities more importance is given for ceremonies than for registration of marriage. Ceremonies of Marriage are not recognized by foreign embassies in India and Foreign Countries outside India as evidence for a valid marriage. Valid ceremonies performed according to the personal laws in India will not make a marriage a valid one or will be recognized as a valid marriage by foreign embassies in India and Foreign Countries outside India.  In such cases even  if the NRI husband forsakes her or  takes another wife in foreign country and abandons her she becomes completely helpless with out a marriage certificate. She will not even get any right over his property or any rights she is entitled for as a wife.

Property Rights

If a person dies intestate his wife and children have right over his property as his legal heirs. To claim this right first they have to prove their legal status as wife and children. If the marriage is a valid marriage she gets the legal status of wife and the children will be legitimate children of the couple and will have right over the property. But in any case, the validity of the marriage becomes a question the right of the wife over the property of her husband and children’s right over the property also becomes a question. Even during the life time of the husband if he fails to maintain his wife and children their right over his property is affected if there is no valid proof for the marriage. Without the marriage being registered the husband can deny their rights simply saying that there was no valid marriage.  Even after his death his relatives can take the same stand.

 

 

Child marriage

Non-registration of marriage is also one of the reasons for Child marriage. In India child marriage is not problem of a particular community or a problem of a state. It is a serious national problem. Indian law has made child marriage illegal. It is still widely practiced across the nation. The highest rates are seen particularly in the rural states of Andhra Pradesh, Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh[3]. More than half of the women in India are married before the legal minimum age of 18.[4] The Child Marriage Act has prescribed 18 years as the minimum age for girls and 21 years for boys for getting married. But violation of it will not affect the validity of the marriage. It will only attract penal consequences.

 In India, in many areas minor girls are given in marriage to much older men. In the name of marriage human trafficking of these girls take place and they are sold to brothels later. Registration would prevent these kinds of marriages.  It will serve as a deterrent to parents who arrange for child marriage and also to persons who trade them in name of marriage. It will prevent child marriage, sale of girls and trafficking.

 

What are the steps taken by the judiciary?

A Supreme Court Bench consisting of Justices Arijit Pasayat and P. Sathasivam on 6th February 2006 directed for compulsory registration of marriages across the country. While deciding the case of Smt. Seema the court issued a direction to all states and union territories.

 “(1) Evolve procedure within 3 months from today (6.2.2006) by amending existing rules.

(2) Appoint officers for the purpose, who shall register marriages and maintain a register of marriages”

Learned Solicitor General Mr. G.E. Vahanvati and learned senior counsel Mr. Ranjit Kumar, were requested to act as Amicus Curiae to assist the Court.

This direction issued by the Supreme Court evoked only little response. In July 2007, the amicus curiae Ranjit Kumar informed the court that some states had framed rules for compulsory Registration of marriages in compliance with the court’s 2006 order, but they had done so only for Hindu marriages and not other religions. Then the apex court clarified that the order was meant to cover all religions. By order dated 23.7.2007[5] with reference to the earlier order dated 14.12.2006, the Court directed that the marriages are to be made compulsorily registrable in respect of persons who are citizens of India even if they belonged to various religions. Direction was given requiring compliance within another three months and to file details of compliance.

What are the steps taken by the parliament of India?

Article16 (2) of CEDAW says:
“The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory”

Though India, in principle agreed with compulsory registration of marriages expressed reservation to this clause to make registration compulsory because it was felt that ”it is not practical in a vast country like India with its variety of customs, religious and level of literacy” to make registration compulsory. India is a signatory to the convention of CEDAW[6] and has ratified it. International treaties and conventions ratified by India do not automatically form part of the Indian law. It needs to be incorporated into Indian law through enabling legislation before the implementation of their provisions can be enforced through courts. Under the Constitution, Parliament has the exclusive competence to enact legislation on any subject for the purpose of giving effect to any International treaty or convention. The parliament has the power to enact such law under the concurrent list. 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’. But The Central Government instead of coming with legislation made it mandatory for all States to legislate for compulsory registration of marriages. The reasoning is that the States are in a better position to know the social structure and local conditions prevailing in the respective states.

The Committee on Empowerment of Women[7]  in its Report on Plight of Indian Women Deserted by Non Resident Indian (NRI) Husbands presented to Lok Sabha on the 13th August, 2007, expressed the view that all marriages, irrespective of religion should be compulsorily registered. It desired that the Government should make registration of all marriages mandatory and the procedure of registration must be made simpler, affordable and accessible.

The 18th Law Commission in its 211th Report[8] recommended for Parliamentary legislation on compulsory registration of marriages which will bring country-wide uniformity in the substantive law relating to registration.

 The National Human Rights Commission proposed for compulsory registration of Hindu marriages.  It was rejected by the Union Government in 1994[9], in 1996[10] and 2000[11].

Finally now the Registration of Births and Deaths (Amendment) Bill, 2012 was introduced in Raja Sabha on May 7, 2012 by Mr. Salman Khurshid, Minister of Law and Justice.[12] But whether this Bill will become a law is still uncertain.   Muslim leaders of prominent organizations have already started opposing it. They term it as “direct infringement with the Shariat law.””

Zafaryab Jilani, AIMPLB legal adviser and member of its apex executive body asks “How can you render a ‘nikah’ invalid simply because the marriage has not been formally registered with the concerned authorities?” No one other than a shariat court has the right to declare a ‘nikah’ invalid. He also feels, “Any condition which is not enshrined in the Shariat and is sought to be imposed through an official notification would tantamount to meddling with the personal law and therefore unacceptable to Muslims.”[13]

Lucknow’s Naib Imam and head of Firangi Mahal, the city’s leading Islamic seminary also seeks to make it loud and clear that the government’s move would not be acceptable to the community.[14]

Current laws relating to registration of marriages

1.State Laws

The history of laws governing registration of marriages dates back to 1886. Provisions for registration of birth, death and marriage were made by the British, by passing an Act[15] in the year 1886. The current status is that many states have come out with legislation to make registration compulsory. For instance –

  1. The Bombay Registration Marriages Act, 1953
  2. The Karnataka Marriages Act enacted in 1976 and in force since 1983.
  3. The Himachal Pradesh Registration of Marriage Act, 1997.
  4. The Andhra Pradesh Compulsory Registration of Marriage Act 2002.

In Jammu and Kashmir registration of marriage is made compulsory by the Muslim Marriages Registration Act, 1981[16]. It 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.

 

2.Personal Laws

Christians

A Christian marriage is performed under the Christian personal law[17] and registration of marriage is compulsory. Soon after the ceremony of marriage entries are made in the marriage register of the church along with the signatures of the bride, bridegroom, the officiating priest and witnesses. Government is appointing Marriage Registrars under the Indian Christian Marriage Act.

Parsis

 For Parsis also the registration of marriage is compulsory under their personal law.[18]Marriages between Parsis are registered by the District Registrars. The priests who perform the marriages send the details to the registrars.

Muslims

 Among Muslims the Qazi records the terms of the marriage in a nikhanama and hands it over to the married couple. So registration is compulsory for Muslims as well.

The Special Marriage Act

The special marriage act also provides for compulsory registration of marriage. A marriage solemnized under the Special marriage Act can be registered under section 13[19] of the Act. Also, a marriage solemnized under any other form can be registered under the Act under Section 15[20] of the Act. The procedure to register a marriage celebrated in some other form is laid down under Section 16[21] of the Act.

District Registrars and Sub Registrars are Marriage Officers under the Special Marriage Act within their respective jurisdiction

Hindus

Only among Hindus registration of marriage is not compulsory. Section 8[22] of the Hindu marriage Act provides for registration, but it is not compulsory to register. Non-registration will not affect the validity of marriage.

District Registrars, Sub Registrars, Executive Officers of the temples coming under the Hindu Religious & Charitable Endowments Department are Marriage Registrars under the Hindu Marriage Act within their respective jurisdiction.

Different states have different law pertaining to registration of marriage and it is different for different religious people. Even under the proposed Central law (The Registration of Births and Deaths (Amendment) Bill, 2012) there is no proposal for uniform law for all religious people throughout the country.

What are the advantages of making registration of marriage compulsory for every one?

The advantages of compulsory registration of marriage are manifold.

  1. It will be conclusive proof of a valid marriage. The parties can get a marriage document certified by the Government. In the unhappy circumstances of disputes (whether civil or criminal) between the spouses relating to divorce, dowry, maintenance and other cases, Marriage Registration Certificate will provide protection against false denial of marriage by either of the spouses.
  2. It will be helpful in claiming the Bank deposits or Life Insurance benefits when the depositee or the Insurer dies without a nomination or otherwise.
  3. Child marriages can be prevented to a great extent.
  4. The registrar of marriages will register a marriage only after verifying that all the conditions required for a valid marriage is satisfied. This will reduce future litigations.
  5. In NRI Marriages the difficulties faced by the spouses in getting visas will be reduced to the minimum while accompanying their spouse to the foreign countries

Conclusion

It is very advantageous and necessary to have a marriage registered. The registrar would demand a signed declaration that neither the bride nor groom has a spouse living at the time of entering into the marriage. It would deter anyone getting into a bigamous second marriage.  The husband cannot escape saying that valid ceremonies were not followed, so no offence of bigamy is committed. Affected/cheated wives will be able to prove their marriage and seek remedy. Child marriages can be prevented to a large extent.

But the scenario still in India is that the marriages are mostly fixed by the parents. Under-aged girls who do not have any knowledge about the marriage or its consequences are given in marriage. A step to register such marriages has to be taken either by her parents or by her husband. Hence for registering her marriage she has to depend only on her parents or her husband. If Registration is made compulsory, and non registration will render the marriage invalid, again the worst affected parties will be the women.  If she cannot decide about her marriage, about her life partner, how can she insist for registration of marriage?

Even after continuous efforts to make registration compulsory it always fails because the society is not ready to accept it.   But we can make the parties themselves to come forward for registration of marriages in different ways.

  1. The Marriage registration document should be made as a very important document in day to day life.

a)      In school admission it should be made as an important requirement.

b)      Getting ration card should not be possible without Marriage registration certificate.

c)      Opening an account in bank – marriage certificate is necessary

Starting from driving license to getting visa, for everything Marriage certificate should be made as an important document.

  1. The People should be sensitized about the importance of the registration of marriage. Campaigns for registration of marriages can be done by NGO’s and women’s organisations.
  2. The responsibility of registering a marriage should be on the husband. If a marriage is not registered then he should be punished for that.
  3. The procedure to register marriage must be very simple. It should be possible to register the marriage with VAO’s office (Village Administrative Officer) or with Gram Panchayat or even with the sub inspector of a local police station who will in turn forward it to the Marriage Registrars who can verify it.

Once the society is ripe to accept the reform then registration of marriage can be made mandatory. Any reformative legislation made without taking into account of the society will not be successful.

[1]  Merriam Webster: Bigamy – In cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another.

[2] Bigamy is a non-cognizable offence. It is bailable and compoundable with the permission of court if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, which may extend till 7 years or fine or both. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both. Such offence under section 495 is not compoundable.

[3] http://en.wikipedia.org/wiki/Child_marriage_in_India (last visited on 24th December 2013)

[4]  Hand book on prohibition of child marriage Act, 2006, http://www.unicef.org/india/Child_Marriage_handbook.pdf

[5] Smt. Seema v. Ashwani Kumar MANU/SC/4107/2007

[6] Convention on the Elimination of All Forms of Discrimination Against Women

[7] 2006-2007 ,Twelfth Report

[8]  “Laws on Registration of Marriage and Divorce —A proposal for Consolidation and Reform”.

[9] Narasimha Rao government

[10] H.D. Deve Gowda government

[11] Atal Behari Vajpayee government

[12] The Bill has been referred to the Standing Committee on Personnel, Public Grievances, Law and Justice on May 9, 2012.  The chairperson is Mr. Shantaram Naik.

[13] Muslim clerics averse to compulsory registration of marriages,

http://www.rediff.com/news/report/muslim-clerics-averse-to-compulsory-registration-of-marriages/20120419.htm (last visited June 29, 2012)

[14] Muslim clerics averse to compulsory registration of marriages,

http://www.rediff.com/news/report/muslim-clerics-averse-to-compulsory-registration-of-marriages/20120419.htm (last visited June 30, 2012)

[15] Birth, Death and Marriage Registration Act, 1886

[16] Section 3, Jammu and Kashmir Muslim Marriages Registration Act, 1981

[17] The Indian Christian Marriages Act of 1872

[18] The Parsi Marriage and Divorce Act 1936

[19] Sec.13(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

Sec.13(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

[20] Section 15 – Registration of marriages celebrated in other forms –

Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the1Special Marriage Act, 1872 (III of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:–

(a) a ceremony of marriage has been performed between the parties and they have .been living together as husband and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;

(e) the parties are not within the degrees of prohibited relationship:

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

[21] Section 16 – Procedure for registration –

Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

[22] Section 8, Hindu Marriage Act, 1955-

8(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

8(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

8(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

8(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts there from shall, on application, be given by the Registrar on payment to him of the prescribed fee.

8(5) notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

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