Analysis

Demystifying the Dreaded Marriage Registration

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In the legislative history of India, the system of certification and keeping written records of marriages was first provided for under the Christian Marriage Act and the Special Marriage Act, both enacted in 1872. The first of these was meant for marriages among the Christians, while the latter Act had made room for solemnization of non-religious civil marriages at the option of the parties.  

Certification of marriages by the officiating priests was not prevalent in the majority Hindu community except among its progressive Brahmosamaj and Aryasamaj sections. On the other hand, the tradition of preparation and issuance of nikah-namas by the qazis solemnizing marriages was in vogue among the Muslims. In the late 18th century the system of appointing official qazis was inherited from the Mughals by the new British rulers but, after remaining in force for about a century, was abolished by law in 1864. Muslim religious circles resented it and demanded restoration of the system of official qazis. Responding to the demand, the Bengal provincial government enacted a Mohammedan Marriage and Divorce Registration Act in 1876 providing for voluntary registration of marriages and divorces among the Muslims with ‘Mohammedan Registrars’ to be appointed by the government in Bengal, Bihar and Orissa. Four years later, after Sir Syed intervened in the matter, the central legislature enacted the Kazis Act 1880 re-empowering all provincial governments to appoint official qazis mainly for solemnizing and certifying marriages.

In 1886, the central legislature enacted a Births, Deaths and Marriages Registration Act which provided for the establishment of a Provincial Registry in each province to maintain separate Registers for births, deaths and marriages. Marriage records prepared and kept under the two central laws of 1872 and the Bengal local Act of 1876, referred to above, were now required to be periodically transmitted to the Provincial Registry. While no such provision was ever made under the central Kazis Act of 1880, it was incorporated into the Assam Moslem Marriage and Divorce Act 1935 [which dittoed the Bengal law of 1876], and in the Parsi Marriage and Divorce Act enacted by the central legislature the following year.

This is where the laws on registration of marriages stood at the advent of independence in 1947. The first law on marriage registration enacted after independence was the Orissa Mohammedan Marriage and Divorce Registration Act 1949 which was an improved version of the old Bengal Act of 1876. In 1953, the Bombay State Legislature enacted a general Marriage Registration Act requiring compulsory registration of all marriages, but making it clear that non-registration would not affect the validity of any marriage. This law is now in force in Maharashtra, Gujarat and Andhra Pradesh. Similar laws have been enacted later also in some other states.  

The Special Marriage Act 1954 (which replaced the old 1872 law of the same name referred to above) provided for solemnization of civil marriages by government officials and also made room for conversion of an existing religious marriage satisfying its conditions into a civil marriage if both parties so want on their own volition.

The Hindu Marriage Act, enacted next year, empowered State Governments to facilitate registration of marriages and make it compulsory if deemed “necessary or expedient;” and Rules were soon framed for this purpose in most states.  

In 1978, the old Kazis Act of 1880 was amended in Maharshtra making it applicable also to all private qazis and requiring them to maintain proper records of marriages solemnized by them. Two years later the Jammu and Kashmir legislature enacted a law for compulsory registration of all marriages which, however, had to be withdrawn due to a public outcry against it.

The United Nations Convention on Elimination of Discrimination against Women 1979 (CEDAW) required all State-Parties to enact laws for compulsory registration of marriages. India ratified it in 1993 subject to certain reservations including one regarding compulsory registration of marriages which in the government’s opinion was yet not feasible here. Ignoring this, in a 2006 case the Supreme Court of India directed that Rules for compulsory registration of every marriage be framed and notified in all states. Accordingly, registration of marriages governed by the Hindu Marriage Act 1955 has been made compulsory in most states of India. The Orissa Government has also modified its Rules under the local Mohammedan Marriage and Divorce Act 1949 to make compulsory registration of all Muslim marriages in the state.   

Whatever be the position of registration of marriages, voluntary or compulsory, it must be clearly understood that registration of marriages is a merely administrative process having nothing to do with any substantive aspect of a marriage including its solemnization or legal validity. Registration does not change a religious marriage into a civil marriage as even after registration it continues to be governed by the personal law of the parties. The exceptional provision of the Special Marriage Act 1954 for converting  a religious into a civil marriage by the joint decision of the parties is an entirely different matter which must not be confused with the ordinary registration of marriages. Marriages solemnized by religious rites are to be registered not under that Act but under the general or community-specific laws on marriage registration referred to above. These points regarding registration of marriages may be kept in mind while taking a stand on the issue, individually or at the community level.

This article appeared in The Milli Gazette print issue of 16-30 November 2012 on page no. 11

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