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Published in the 1-15 May 2004 print edition of MG; send me the print edition

LAW WATCH
Why fear marriage registration?
By Tahir Mahmood

Tahir Mahood"I think, sooner than later, registration of marriage shall be made compulsory for all communities. The Board should consider this possibility in advance", said Syed Shahabuddin in a letter which he addressed to the All India Muslim Personal Law Board on 7th January this year and has now published in the latest issue of his Mushawarat Bulletin (III:15). As the expression "consider this possibility in advance" is too vague, it is anybody's guess whether the advice to the Board is to oppose or accept any possible move for a compulsory registration of marriages. In another letter addressed to the Board a month later (6th February), also published in the same issue of the Mushawarat Bulletin, he made a strong plea that the Board should "place a draft-code before the Government which would be based on the principles of gender equality and gender-justice as in-built in the Holy Quran", stating that "if we do not take the initiative for the codification of our personal law, taking into account the contemporary situation in India and the codes adopted by the leading Muslim countries like India, Pakistan, Bangladesh, Iran and Egypt, the next government will enact a common civil code with a Hindu slant." 

The stand of the All India Muslim Personal Law Board in both these matters - viz., registration of marriages and codification of personal law - has always been negative; and it will be nave to expect it to change merely as a response to these letters. I definitely hold no brief for the Board and can never support its stand on these matters. It must, however, be given the relevant facts with complete accuracy and, therefore, to set the record straight I must point out the mistakes in the two letters addressed to it. The reference in the first of these to the Special Marriage Act while saying that "already registration of marriage is compulsory" under certain laws is - I am sorry to say with respect - as wrong as that in the second to "Pakistan, Bangladesh, Iran" in the context of "codes adopted by leading Muslim countries." 

As regards the Special Marriage Act 1954 containing the law of civil marriages, it is an entirely optional law and no one is bound to make use of its provisions. It simply provides an alternative to every personal law available to all Indian citizens. If two persons intending to get married want so, they can voluntarily go in for a civil marriage (instead of a religious marriage) by following the procedure prescribed under the said Act. Also couples already married as per religious rites under their personal law may, if they so want, turn their pre-existing marriage into a civil marriage by registering it under the Act. This they can do only by their own sweet will -- no married couple is in any case legally bound to do so. In view of this very restricted scope of the Act of 1954, it is wrong and rather misleading to include it among the laws under which "already registration of marriage is compulsory."

As regards the reference in the second letter to "the codes adopted by leading Muslim countries", three of the four countries referred to in the letter -- viz., Pakistan, Bangladesh and Iran -- have not till this day adopted any "code" of Muslim law. In Pakistan, in 1961 during General Ayub's regime a brief Ordinance had been issued to effect some limited reforms. While this Ordinance has remained in force in Bangladesh after its separation from Pakistan in 1971, neither there nor in Pakistan has any other law been ever enacted in the area of Muslim law. And in both the countries religious scholars look with disfavor even at the limited reforms introduced by the 1961 Ordinance. In Iran the erstwhile regime of Raza Shah Pahelvi had enacted in1967 and 1975 two brief Family Protection Laws introducing similar reforms of a limited nature. After Imam Khumaini's Revolution both these laws were, however, fully repealed. Thus, in none of these three countries - Pakistan, Bangladesh and Iran -- there exists any "code" of Muslim law till this day. 

Of course Muslim law has been fully codified in Algeria, Egypt, Iraq, Jordan, Kuwait, Libya, Morocco, Syria, Tunisia and Yemen. In India the Muslim Personal Law Board recently produced, in the name of "codification", yet another textbook on the Hanafi law - without taking into account any provision of the other schools of Islamic law prevalent in India - the Shafei, the Isna Ashari and the Ismaili -- as also the stand of the Ahl-e-Hadis on certain important matters. If the Board ever agrees to undertake another exercise towards preparing a draft-code, it will have to realize that a collection of the rules of any particular school of Muslim law, however dominant it may be locally, cannot qualify for the epithet "Code of Muslim Law". 

As regards registration of marriage, one of the letters under reference addressed to the Board speaks of a law requiring compulsory registration of all marriages recently enacted by the Andhra Pradesh legislature saying that "initially some Muslim organizations protested (against it) but their protest has died down". This law is in fact neither unprecedented nor contains anything new. Half a century ago, the legislature of the united Bombay state had enacted the Bombay Registration of Marriages Act made applicable to all marriages irrespective of the religion and personal law of the parties. After the reorganization of states it remained in force in both Maharashtra and Gujarat and by local Acts enacted in both these states in 1963 was extended to their entire territories. The Andhra Pradesh Registration of Marriages Act is nothing but an adaptation of the old Bombay law of 1954. These laws, in all the three states, make it abundantly clear that mere non-registration of any marriage will not make it invalid if it is otherwise valid under the "law applicable"; nor will mere registration will validate any marriage which is otherwise invalid under the law by which it is governed. These are thus harmless laws of merely an administrative nature. 

The idea of compulsory registration of all marriages, if implemented, is expected to bring some discipline in the matrimonial law regime which otherwise often witnesses utter disregard for legal rules. As such it will surely help in the enforcement of "principles of gender equality and gender-justice as in-built in the Holy Quran" -- which one of the letters under reference aptly speaks about. So will a proper codification of Muslim law taking into account the amazing riches of the noble Shariah.

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