CASE NO.:
Transfer Petition (civil) 291 of 2005
PETITIONER:
Smt. Seema
RESPONDENT:
Ashwani Kumar
DATE OF JUDGMENT: 14/02/2006
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
The origin of marriage amongst Aryans in India, as noted
in Mayne's Hindu Law and Usage, as amongst other ancient
peoples is a matter for the Science of anthropology. From the
very commencement of the Rigvedic age, marriage was a well-
established institution, and the Aryans ideal of marriage was
very high.
The Convention on the Elimination of All Forms of
Discrimination Against Women (in short 'CEDAW') was
adopted in 1979 by the United Nations General Assembly.
India was a signatory to the Convention on 30th July, 1980
and ratified on 9th July, 1993 with two Declaratory Statements
and one Reservation. Article 16(2) of the Convention says
"though India agreed on principle that compulsory registration
of marriages is highly desirable, it was said as follows:
"'It is not practical in a vast country like India
with its variety of customs, religions and level
of literacy' and has expressed reservation to
this very clause to make registration of
marriage compulsory".
While a transfer petition was being heard it was noted
with concern that in large number of cases some
unscrupulous persons are denying the existence of marriage
taking advantage of the situation that in most of the States
there is no official record of the marriage. Notice was issued to
various States and Union Territories and learned Solicitor
General and Mr. Ranjit Kumar, learned senior counsel were
requested to act as Amicus Curiae to assist the Court in laying
down guidelines in the matter of registration of marriages.
Without exception, all the States and the Union Territories
indicated their stand to the effect that registration of
marriages is highly desirable.
It has been pointed out that compulsory registration of
marriages would be a step in the right direction for the
prevention of child marriages still prevalent in many parts of
the country. In the Constitution of India, 1950 (in short the
'Constitution') List III (the Concurrent List) of the Seventh
Schedule provides in Entries 5 and 30 as follows:
"5. Marriage and divorce; infants and
minors; adoption; wills, intestacy and
succession; joint family and partition; all
matters in respect of which parties in judicial
proceedings were immediately before the
commencement of this Constitution subject to
their personal law.
30. Vital statistics including registration of
births and deaths."
It is to be noted that vital statistics including registration
of deaths and births is covered by Entry 30. The registration of
marriages would come within the ambit of the expression 'vital
statistics'.
From the compilation of relevant legislations in respect of
registration of marriages, it appears that there are four
Statutes which provide for compulsory registration of
marriages. They are: (1) The Bombay Registration of Marriages
Act, 1953 (applicable to Maharashtra and Gujarat), (2) The
Karnataka Marriages (Registration and Miscellaneous
Provisions) Act, 1976, (3) The Himachal Pradesh Registration
of Marriages Act, 1996, and (4) The Andhra Pradesh
Compulsory Registration of Marriages Act, 2002. In five States
provisions appear to have been made for voluntary registration
of Muslim marriages. These are Assam, Bihar, West Bengal,
Orissa and Meghalaya. The "Assam Moslem Marriages and
Divorce Registration Act, 1935," the "Orissa Muhammadan
Marriages and Divorce Registration Act, 1949" and the "Bengal
Muhammadan Marriages and Divorce Registration Act, 1876"
are the relevant statutes. In Uttar Pradesh also it appears
that the State Government has announced a policy providing
for compulsory registration of marriages by the Panchayats
and maintenance of its records relating to births and deaths.
Under the Special Marriage Act, 1954 which applies to Indian
citizens irrespective of religion each marriage is registered by
the Marriage Officer specially appointed for the purpose. The
registration of marriage is compulsory under the Indian
Christian Marriage Act, 1872. Under the said Act, entries are
made in the marriage register of the concerned Church soon
after the marriage ceremony along with the signatures of bride
and bridegroom, the officiating priest and the witnesses. The
Parsi Marriage and Divorce Act, 1936 makes registration of
marriages compulsory. Under Section 8 of the Hindu Marriage
Act, 1955 (in short the 'Hindu Act') certain provisions exist for
registration of marriages. However, it is left to the discretion of
the contracting parties to either solemnize the marriage before
the Sub-Registrar or register it after performing the marriage
ceremony in conformity with the customary beliefs. However,
the Act makes it clear that the validity of the marriage in no
way will be affected by omission to make the entry in the
register. In Goa, the Law of Marriages which is in force in the
territories of Goa, Daman and Diu w.e.f. 26.11.1911 continues
to be in force. Under Articles 45 to 47 of the Law of Marriages,
registration of marriage is compulsory and the proof of
marriage is ordinarily by production of Certificate of Marriage
procured from the Register maintained by the Civil Registrar
and issued by the concerned Civil Registrar appointed for the
purpose by the Government. The procedural aspects about
registration of marriages are contained in Articles 1075 to
1081 of the Portuguese (Civil) Code which is the common Civil
Code in force in the State. It is pointed out in the affidavit filed
on behalf of the respondent-State of Goa that the Hindu Act is
not in force in the said State since it has not been extended to
the State either by the Goa, Daman and Diu Laws Regulations,
1962 or by the Goa, Daman and Diu Laws No.2 Regulations,
1963 by which Central Acts have been extended to the State
after the liberation of the State. Procedure for marriages is also
provided in Code of Civil Registration (Portuguese) which is in
force in the State. The Foreign Marriage Act, 1969 also
provides for registration of marriages.
As noted above, the Hindu Act enables the State
Government to make rules with regard to the registration of
marriages. Under Sub-section (2) of Section 8 if the State
Government is of the opinion that such registration should be
compulsory it can so provide. In that event, the person
contravening any rule made in this regard shall be punishable
with fine.
In various States different marriage Acts are in operation
e.g. in Jammu and Kashmir, Jammu and Kashmir Hindu
Marriage Act, 1980 empowers the Government to make rules
to provide that the parties (Hindus) shall have their particulars
relating to marriages entered in such a manner as may be
prescribed for facilitating proof of such marriages. Admittedly,
no rules have been framed. As regards Muslims, Section 3 of
the Jammu and Kashmir Muslim Marriages Registration Act,
1981 provides that marriage contracted between Muslims after
the commencement of the Act shall be registered in the
manner provided therein within 30 days from the date of
conclusion of Nikah ceremony. However, the Act has not been
enforced. So far as Christians are concerned, the Jammu and
Kashmir Christian Marriage and Divorce Act, 1957 provides
for registration of marriages in terms of Sections 26 and 37 for
registration of marriages solemnized by Minister of Religion
and marriages solemnized by, or in the presence of a Marriage
Registrar respectively.
In exercise of powers conferred by Section 8 of the Hindu
Act the State of U.P. has framed U.P. Hindu Marriage
Registration Rules, 1973 which have been notified in 1973. In
the affidavit filed by the State Government it is stated that the
marriages are being registered after enactment of the Rules.
In Pondicherry, the Pondicherry Hindu Marriage
(Registration) Rules, 1969 have come into force w.e.f. 7th April,
1969. All Sub-Registrars of Pondicherry have been appointed
under Section 6 of the Indian Registration Act, 1908 (in short
the 'Registration Act') as Marriage Registrars for the purposes
of registering marriages. In the State of Haryana, the Haryana
Hindu Marriage Registration Rules, 2001 under Section 8 of
the Hindu Act have been notified. In the State of West Bengal,
Hindu Marriage Registration Rules, 1958 have been notified.
From the affidavit filed on behalf of the State of Tripura,
it appears that the said State has introduced rules called
Tripura Hindu Marriage Registration Rules, 1957. It has also
introduced Tripura Special Marriage Rules, 1989 under the
Special Marriage Act, 1954. So far as the State of Karnataka is
concerned, it appears that Registration of Hindu Marriages
(Karnataka) Rules, 1966 have been framed. It further appears
that Karnataka Marriages (Registration and Miscellaneous
Provisions) Act, 1976 has been introduced. Section 3 of the Act
requires compulsory registration of all marriages contracted in
the State.
So far as the Union Territory of Chandigarh is concerned,
Hindu Marriage Registration Rules, 1966 have been framed.
In the affidavit filed on behalf of the National
Commission for Women (in short the 'National Commission') it
has been indicated as follows:
"That the Commission is of the opinion that
non-registration of marriages affects the most
and hence has since its inception supported
the proposal for legislation on compulsory
registration of marriages. Such a law would be
of critical importance to various women related
issues such as:
(a) prevention of child marriages and to
ensure minimum age of marriage.
(b) prevention of marriages without the
consent of the parties.
(c) Check illegal bigamy/polygamy
(d) Enabling married women to claim their
right to live in the matrimonial house,
maintenance, etc.
(e) Enabling widows to claim their
inheritance rights and other benefits and
privileges which they are entitled to after the
death of their husband.
(f) Deterring men from deserting women
after marriage.
(g) Deterring parents/guardians from selling
daughters/young girls to any person including
a foreigner, under the garb of marriage."
As noted supra, except four statutes applicable to States
of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and
Andhra Pradesh registration of marriages is not compulsory in
any of the other States.
As is evident from narration of facts though most of the
States have framed rules regarding registration of marriages,
registration of marriage is not compulsory in several States. If
the record of marriage is kept, to a large extent, the dispute
concerning solemnization of marriages between two persons is
avoided. As rightly contended by the National Commission, in
most cases non registration of marriages affects the women to
a great measure. If the marriage is registered it also provides
evidence of the marriage having taken place and would provide
a rebuttable presumption of the marriage having taken place.
Though, the registration itself cannot be a proof of valid
marriage per se, and would not be the determinative factor
regarding validity of a marriage, yet it has a great evidentiary
value in the matters of custody of children, right of children
born from the wedlock of the two persons whose marriage is
registered and the age of parties to the marriage. That being
so, it would be in the interest of the society if marriages are
made compulsorily registrable. The legislative intent in
enacting Section 8 of the Hindu Act is apparent from the use
of the expression "for the purpose of facilitating the proof of
Hindu Marriages".
As a natural consequence, the effect of non registration
would be that the presumption which is available from
registration of marriages would be denied to a person whose
marriage is not registered.
Accordingly, we are of the view that marriages of all
persons who are citizens of India belonging to various religions
should be made compulsorily registrable in their respective
States, where the marriage is solemnized.
Accordingly, we direct the States and the Central
Government to take the following steps:
(i) The procedure for registration should be
notified by respective States within three
months from today. This can be done by
amending the existing Rules, if any, or by
framing new Rules. However, objections from
members of the public shall be invited before
bringing the said Rules into force. In this
connection, due publicity shall be given by the
States and the matter shall be kept open for
objections for a period of one month from the
date of advertisement inviting objections. On
the expiry of the said period, the States shall
issue appropriate notification bringing the
Rules into force.
(ii) The officer appointed under the said Rules of
the States shall be duly authorized to register
the marriages. The age, marital status
(unmarried, divorcee) shall be clearly stated.
The consequence of non-registration of
marriages or for filing false declaration shall
also be provided for in the said Rules.
Needless to add that the object of the said
Rules shall be to carry out the directions of
this Court.
(iii) As and when the Central Government enacts
a comprehensive statute, the same shall be
placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union
Territories shall ensure that the directions
given herein are carried out immediately.
The Registry is directed to handover a copy of this order
to learned Solicitor General for necessary follow-up action.
We record our appreciation for the valuable assistance
rendered by Mr. G.E. Vahanvati, the Solicitor General and Mr.
Ranjeet Kumar, senior advocate, who appeared as amicus
curiae.
