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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

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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,

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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

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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.