Should registration of marriages be compulsory in India?
- ByPravleen Kaur --
- 01 Dec 2024 --
- 0 Comments
Should registration of marriages be compulsory in India?
In India, a marriage can be registered under the Hindu Marriage Act of 1955 or the Special Marriage Act of 1954.
The Hindu Marriage Act applies to Hindus. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains, or Sikhs, or where they have converted to any of these religions.
Marriage registration is really important for the legal validity of marriage in India. A Marriage Certificate is an important document needed for applying for a passport, any kind of property purchase, or to apply for a companion visa
The Special Marriage Act applies to all citizens of India. It also applies to people not defined in the Hindu Marriage Act as Hindu. This includes people not belonging to Hindu, Jain, Sikh or Buddhist communities
Moreover, any person, irrespective of religion, can solemnize and register their marriage under the Special Marriage Act 1954.
As per Section 7 of the Hindu Marriage Act, a marriage is considered to be complete when both the bride and the groom take 7 steps around the holy fire together. After the completion of all the religious acts involved in a marriage, the parties should register their marriage.
After the proper evaluation of submitted documents, the concerned authority provides a marriage certificate to the parties as proof of their legal and valid marriage. For constituting a legal marriage, parties should not marry people from sapinda or prohibited relationships unless there is a contrary custom existing in their respective community.
The Hindu Marriage Act lays down provisions about marriage registration under Section 8.
The section essentially provides state governments to issue directions and make registration of marriages compulsory for the facilitation of proof of the marriages, if the government is of the opinion that it is necessary or expedient to do so. In that event, the person contravening any rule made in this regard shall be punishable with a fine.
The registration of marriages essentially means to enter the particulars of the parties, relating to their marriage entered in a Hindu Marriage register kept for the purpose.
Subsection 5 of section 8 provides that the validity of a Hindu marriage shall not be affected by the omission to make the entry.
The Supreme Court in the year 2006 through the case of Seema vs Ashwani Kumar, held that any marriage solemnized between citizens belonging to all religions must get their marriage registered. There is no such mandate under the personal marriage laws. Marriage is still a valid marriage if it is been completed following all the necessary rituals stated in the personal laws.
In the judgment of Seema vs Ashwani Kumar, Honourable Justice Arijit Pasayat observed that: 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. Article 16(2) of the convention says "Though India agreed on the 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 a large number of cases, some persons were denying the existence of marriage and abusing 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 the learned Solicitor General and Mr. Ranjit Kumar learned senior counsel requested to act as Amicus Curiae(one who assists the courts on the question of fact or law) 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.
It is also noted in this judgment that the Constitution of India, 1950 provides for List III (the Concurrent List) of the Seventh Schedule, entry 30, which includes vital statistics including registration of births and deaths. The registration of marriages would come within the ambit of the expression 'vital statistics'.
In the affidavit filed on behalf of the National Commission for Women (in short the 'National Commission') it has been stated as follows:
"That the Commission is of the opinion that non-registration of marriages affects women 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."
Registration of marriage is not compulsory in any of the other states than Maharashtra, Gujarat, Karnataka, Himachal Pradesh, and Andhra Pradesh which have their own statutes available to them.
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 proof of valid marriage per se, and would not be the determinative factor regarding the validity of a marriage, 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 society if marriages were made compulsorily registrable. That being so, it would be in the interest of society if marriages were made compulsorily registrable.
The legislative intent in enacting section 8 of the Hindu Marriage Act is apparent from the use of the expression "for the purpose of facilitating the proof of Hindu Marriages".
the consequence of non-registration of marriage would naturally be that parties to the marriage will be denied the very presumption of it. They would not be able to avail any of the aforementioned benefits of registration of marriages
Conclusion:
As is evident from the narration of facts though most of the States have framed rules regarding the 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 the 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.
Therefore, registration of marriage shall be made compulsory throughout the territory of India, without any exceptions.
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