Why fear marriage registration?

In 1953, the erstwhile Bombay state enacted a law for compulsory registration of all marriages other than civil, Christian and Parsi marriages which were already being registered under their respective governing statutes. After the 1956 reorganisation of states, both Maharashtra and Gujarat retained this law. Recently it was adopted in Andhra Pradesh. These laws, however, make it clear that failure to register a marriage would entail a penalty but would not affect its validity.

The Hindu Marriage Act of 1955 empowers state governments to make arrangements for registration of marriages and to make such registration compulsory if it is deemed 8220;necessary or expedient8221;. It is clarified under this Act, too, that in the event of registration being made compulsory, non-registration would not affect the validity of any marriage otherwise lawful under its provisions. Registration rules in pursuance of these provisions have since been formulated in most states, generally providing for voluntary registration.

For the Muslims, through the efforts of the great educationist Sir Syed Ahmad Khan, a Kazis Act was enacted in 1880, enabling provincial governments to appoint kazis for performing marriages. The Act clarified that it was only providing a facility not to be imposed on anyone. Now in force in several states, the Act was amended in Maharashtra in 1980 to make it obligatory for official kazis to maintain proper records of marriages. As far back in 1876 the Bengal government had enacted a Mohammedan Marriages and Divorces Registration Act providing for voluntary registration with officially appointed 8216;Mohammedan marriage registrars8217;. Later extended to all parts of the then province of Bengal-Bihar-Orissa, this law was re-enacted almost verbatim in the present states of Assam, Orissa and Meghalaya in 1935, 1949 and 1974 respectively. All these Acts make it clear that a valid marriage will neither become unlawful by non-registration nor will mere registration legalise an invalid marriage.

This is where the marriage registration scenario stands at present. In the recent past there have been official proposals to make registration of all marriages obligatory irrespective of the parties8217; religion and personal law, but each time the proposers had to drag their feet for fear of communal backlash. Any such move is invariably opposed, among others, by Muslim religious leaders pleading that the traditional system of nikahnamas marriage deeds being prepared, maintained and issued to the parties by the kazis is a part of Muslim legal practice and registration with state registry, apart from being superfluous, would be an 8216;interference with the sacred law8217;.

People must understand that registration of a religious marriage will not turn it into a civil marriage 8212; for registering civil marriages there already are in force two separate laws, Special Marriage Act 1954 and Foreign Marriage Act 1969. The required new law would only be for marriages solemnised by religious or customary rites and, if used, would not in any case alter the character of any marriage. In other words, registration will be absolutely without prejudice to substantive aspects of marriages 8212; including their validity, solemnisation and dissolution 8212; all of which will continue to be governed by the respective personal laws. Registration will not therefore come in conflict with any religious law 8212; much less with Muslim law, under which marriage is seen as a contract, albeit sacred, and the Holy Quran advises people to reduce to proper writing all their mutual transactions.

The misgivings and fears about the judicially proposed compulsory registration of marriages are misplaced and have to be duly removed through a proper educative process.

The writer is member, Law Commission of India