CASE NO.:
Transfer Petition (civil) 291 of 2005
PETITIONER:
Smt. Seema
RESPONDENT:
Ashwani Kumar
DATE OF JUDGMENT: 25/10/2007
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
TRANSFER PETITION 291 OF 2005
Dr. ARIJIT PASAYAT, J.
1. Pursuant to the order dated 23.7.2006, the matter was
placed for our consideration. By judgment dated 14.2.2006
reported as Smt. Seema v. Ashwani Kumar (2006 (2) SCC
578), it was directed that all marriages shall be compulsorily
registered. In the said order, it was inter alia noticed as
follows:
"It has been pointed out that compulsory
registration of marriage would be a step in the
right direction for the prevention of child
marriage still prevalent in many parts of the
country. In the Constitution of India, 1950 (in
short the 'Constitution') List II (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."
2. It is to be noted that vital statistics including registration
of deaths and births is covered by Entry 30. The registration
of marriage would come within the ambit of the expression
'vital statistics'.
3. 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
marriage. 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 birde
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 Register 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 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 marriage 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.
4. 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.
5. 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 herein 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.
6. 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.
7. 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.
8. The position prevailing in several States and Union
Territories as follows:
"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
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. "
9. Learned amicus curiae has made reference to the status
reports and affidavits filed by various states and Union
territories, and has brought this Court's notice that some of
the States have made registration of marriages by Hindus to
be registered compulsorily but it has not been done in respect
of other religions. By order dated 23.7.2007 with reference to
the earlier order dated 14.12.2006, it was 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 to file details of
compliance.
10. From the details filed it appears that States of Andhra
Pradesh, Bihar, Chattisgarh, Goa, Himachal Pradesh,
Karnataka, Meghalaya, Mizoram, Rajasthan, Sikkim, Tamil
Nadu, Tripura have complied with the direction. So far as the
state of West Bengal is concerned, it has been submitted by
the learned counsel for the State that on 22.12.2006, changes
have been made to the West Bengal Special Marriages Rules,
1969, registration of Muslim marriages & Divorces
Registration Rules and Hindu Marriage Act for the purpose of
making marriages compulsorily registrable and providing for
consequences for not doing it. It has been pointed out that
Christian and Parsi marriages are solemnized through
compulsory registration according to the applicable statutes.
Therefore no separate rules have been framed in this regard.
So far as other States and Union Territories are concerned,
some of them have not filed any affidavit and in respect of
others, the directions have been compiled with respect of
Hindus. The directions given by the order dated 24.2.2006
have not been fully complied with. We, therefore, direct that
the States and Union Territories who have not acted in line
with the directions given on 14.2.2006 shall forthwith do it
and in no case later than three months from today. It is
ordered accordingly.
11. Place this matter after four months.
12. The affidavits indicating compliance shall be filed before
the next date of hearing.
