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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

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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,

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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.

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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

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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.