This article is written by Harit Gandhi. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).
Civil registration of events like birth, death, marriage, and so on is primarily done to provide the legal records needed by law. In India, Section 30 of the Births, Deaths and Marriage Registration Act, 1886, mandates compulsory birth registration. However, as far as marriages are concerned, their registration is not made obligatory since they are connected to consanguinity, and their solemnization is unrelated to registration. Non-registration of marriage provides a breeding ground for social evils like bigamy, desertion, denial of a matrimonial right, child marriage, etc. which has a disproportionate effect on women. Law commission of India (Hereinafter referred to as Law Commission), in its report 270, has expressed concerns regarding the current state of affairs and has come up with suggestions, which can help frame national law.
Thus, for this article, the author will first look at a global overview on compulsory registration of marriages, followed by the central and state laws on registration of marriage, and lastly, determine the feasibility of a national law mandating registration. The author has heavily relied on Law Commission reports while approaching the problem.
Global view on registration of marriages
The United Nations has given primacy to creating a civil registry of social events like birth, death, and marriage. Such a civil registry creates and safeguards individual rights, which also helps in the creation of a database containing vital statistics.
In countries where marriage registration is compulsory, governing norms stipulate either creating a household register/family album or enacting civil laws (individual registrations) mandating compulsory registration. In countries following the former system, formal acknowledgement of one’s status or family-related events such as marriage is only provided after all such occurrences have been recorded and documented in the family or civil registry. For example, when a marriage takes place in Japan, the household record must be amended to reflect the event. This system is known as Koseki. As a result of the family registry, policies can be effectively aimed at the family rather than the individual, with household heads accountable for execution. Though such a system presents its problem, e.g. process of registration may become discriminatory and exclusionary and may involve complex questions when dealing with a person of other nationality. Children born from an unregistered relationship are deemed illegitimate and are not entitled to family property or inherited titles, as used to happen in Koseki. Other examples include countries like Germany (familienbuch), France (livret de Famille), China (hukou).
Whereas countries following a system of non-family registration often have the provision of fines and imprisonment on non-registration of marriage. E.g. As per Section 5(2) of The Muslim Marriages and Divorce Registration Act, 1974 of Bangladesh, non-registration is punished by up to two years of simple imprisonment, a fine of up to 3000 Taka, or both. On the other hand, in countries like France, Italy, Brazil, Portugal, etc., marriage must be celebrated and registered before a governmental body, and a marriage certificate is the only permissible proof of marriage. This effectively makes the non-registration of marriage null and void.
Indian laws on registration of marriage
In India, at the central level, no law makes marriage registration compulsory. As per the commission, marriage registration in different parts of the country is governed by either one of the three central laws (Births, Deaths and Marriage Registration Act, 1886; Registration Act of 1908; and Registration Births and Deaths Act 1969) or local law, or a combination of the two. This leads to a lot of confusion among authorities and those who wish to or have been mandated by law to register their marriages.
As far as personal laws are concerned, marriage registration guidelines are given by The Indian Christian Marriage Act, 1872, The Kazis Act 1880(Muslim), The Anand Marriage Act, 1909, The Parsi Marriage and Divorce Act, 1936, The Special Marriage Act, 1954, The Hindu Marriage Act, 1955. Except for the Parsi Marriage and Divorce Act, 1936, Christian Marriage Act, 1872 and The Special Marriage Act, 1954, no other marriage act mandates compulsory marriage registration. Parsi Marriage and Divorce Act, 1936 and Christian Marriage Act, 1872 have largely taken recourse to the provision of The Birth, Death and Marriage Registration Act, 1886 to provide compulsory marriage registration for maintaining records and statistics.
Section 12 of the Parsi Marriage and Divorce Act, 1936 provides that the priests must periodically transmit their records to Marriage Registrars. A priest who fails to certify a marriage or submit its copy to the Marriage Registrar commits an offence punishable by simple imprisonment for up to three months, a fine of up to one hundred rupees, or both. Furthermore, the State Government will select Marriage Registrars for various districts, and they will be obligated by Section 9 of the Act to send their data to the registrar general of Births, Deaths, and Marriages. Concerning the Indian Christian Marriage Act, 1872, Extracts of marriages registered under the act are forwarded to the Inspector General of Registration. Section 34 mandates transmitting registration records of various kinds of marriage to the Registrar-General of Births, Deaths, and Marriages act 1886.
Given the country’s cultural richness, states under Entry 30, List-3, Schedule 7 of the Indian Constitution have the power to make laws on the registration of marriages. The Supreme Court in Seema v. Ashwani Kumar observed the same and directed the states to compulsorily register marriages solemnized in their jurisdiction. Himachal Pradesh became the first state to introduce a law on compulsory marriage registration in 2004. Following the Supreme Court ruling, many states have developed relevant statutes or made amendments in rules to provide for compulsory marriage registration, with UP (2017) as the latest in the list. Most of them have made registration necessary with a penalty for late registration, but no state has made any law that makes an unregistered marriage invalid or void.
Feasibility of registration
The Commission in para 8.11 recommends amending the Registration of Births and Deaths Act, 1969, to include marriage registration within its scope so that the existing administrative machinery for registration of birth and death can be used for marriage registration, without imposing a substantial financial burden to set up any separate infrastructure. However, addressing financial viability wouldn’t be enough; problems that impact cultural and religious diversity and procedural documentation must also be addressed to ascertain the feasibility of a uniform law.
Legal lacuna on age and impact on social diversity
If implemented, then compulsory marriage will significantly help in reducing child marriages. Delhi HC in Lajja Devi v. State NCT of Delhi observed that compulsory marriage registration would deter guardians from marrying off their underage children as a written record of their ages would show the illegality of such weddings.
There looms uncertainty over the legal age of marriage that authorities must register because of various personal laws and Central laws dealing with the subject. The Special Marriage Act, Section 5(iii) of the Hindu Marriage Act, 1955, and Section 2(a) of the Prohibition of Child Marriage Act, 2006 stipulate 18 and 21 as the minimum age for women and men. However, when it comes to the status of this marriage, there is much ambiguity.
According to Sections 11 and 12 of the Hindu Marriage Act 1955, marriages in which one or more parties are minors are lawful and punishable by a monetary fine. Whereas as per Section 3 of the Prohibition of Child Marriage Act, marriage is voidable at the option of minor. Then there is Muslim Personal Law, which states that a Muslim who has reached puberty and is of sound mind can contract marriage. There itself is much ambiguity on the age of puberty in Muslim law. As per Hanafi, the legal age is presumed to be on completion of the fifteen years, unless puberty is attained before fifteen. The Hedaya, on the other hand, states that the earliest age for a male is twelve years and for a girl nine years. The situation is even more deplorable for Shia females, where the age of puberty begins with menstruation. In NabadSadiq Ali Khan v. Jai Kishori, the court held that puberty starts at nine for girls.
In the lack of a defined status for child marriages – whether invalid, voidable, or lawful – the necessary age for registration remains an open topic. Other than that, the registration age raises a larger question of interference with the customary practice of a different community. The Law Commission is cognisant of the issue and accordingly in para 6.14 recommends regulations that ensure that weddings under all cultures and religions can be recorded instead of meddling with any existing personal law systems. This recommendation can be problematic, as some states might frame laws or rules giving legal effect to child marriage. E.g. Rajasthan government recently amended section 8 of the Rajasthan Compulsory Registration of Marriages Act, 2009, which mandates families to register the marriage of bride below 18 and groom below 21 within 30 days of solemnisation of marriage.
Many activists have raised concerns that it will increase the number of child marriages. The state government responded by saying that the act will ensure marriages happening underground will come under a legal framework and ensure rights to married couples. Again, we need to look at the main objective; our objective is to eliminate child marriages; in essence, the Rajasthan government uses the exact mechanism to fight the evil of child marriage held by Seema v. Ashwini Kumar be a benefactor of child marriage.
The committee in para 3.1 also emphasizes the concept of encouraging legal awareness among the public so that these essential ceremonies might be preceded or followed by marriage registration. However, there are cases where even the registration process might affect some prevailing customs of the community, e.g. Uttar Pradesh Marriage Registration Rules-2017 mandates all residents of the state, regardless of faith or community, to register their marriages. One of the rules mandated that the bride and groom furnish their photograph. The Muslim community objected to this rule, as nikanama (the Islamic marriage contract) doesn’t carry bride and groom images. The commission, however, is silent on such kinds of situations.
While framing provision for permanent registration, it needs to be ensured that neither does provision become too stringent nor does it become too lax that it gets exposed to fraudulent documentation that potentially hampers the cause of redressing social evils. For example, under rule 4(b)(i) of the Tamil Nadu Registration of Marriages Rules, 2009, the document required for proof of legal age to marry can be as simple as a mark-sheet or a birth certificate, so the possibility of submitting fake documents cannot be ruled out. Take the contrasting case of Mumbai; in Mumbai, marriage has to be registered for the issue of passport, but since registering the marriage is tedious, couples instead get their surname officially changed through a notarized affidavit and a notification in the government gazette. Thus, the government needs to account for these extreme circumstances while framing provisions on compulsory marriage registration.
Furthermore, failing to recognize unregistered marriages as genuine may disproportionately impact vulnerable women since it significantly increases the likelihood of legal claims of women failing due to failure to register the marriage, e.g. refusal of maintenance rights. Accordingly, the Law Commission in para 3.2 proposes that an unregistered marriage should not be regarded as ‘illegal,’ but that small fines for non-registration should be imposed to promote registration. Further, given the country’s vastness, a decentralized registration process may better help implement the rule and serve the purpose. The Law Commission in para 8.10 considers this point and suggests that the Sarpanch or Panchmukh may be called to oversee the duty of marriage registration. Kerala Registration of Marriages (Common) Rules, 2008, is modeled on the same principle which under rule 3 makes the Director of Panchayat the Chief Registrar of marriage.
After thoroughly analysing the topic, the author concludes that Parsi, Christian, and Special Marriage Acts are the only central legislatures that mandate compulsory marriage registration. The majority of enactments for compulsory registration are made at the state level. Whereas on the issue of feasibility of national law, the author makes the following observation:-There is a need for a national law on compulsory marriage registration that is neither stringent nor too lax. The law needs to solve the present ambiguity on the legal age of marriage without interfering in the prevailing customs of a community. The implementation of the law should be decentralised for its effective enforcement.
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