Since February 2006, the Supreme
Court has been
directing state governments to frame rules for compulsory registration
of all marriages, irrespective of the parties' personal law. In July
this year, finding that its directive had not been implemented in many
states, the apex court issued it afresh. Barely three months later, the
court has addressed the states on this issue for the third time, now
giving them three months to carry out its order. In this context, the
reluctance of state governments to apply common rules for marriage
registration to all communities and the demand of Muslim religious
leaders to exclude their community from any such rules is being widely
reported by the media.
Technically, rules having the effect of law can be framed by a
government only under an authority delegated to it by proper
legislation. The Hindu Marriage Act, 1955, empowers state governments
to frame rules for registration (optional or mandatory) of all
marriages governed by that Act. Accordingly, rules have been framed by
most states, and now reframed by some to meet the apex court's demand.
However, these rules cannot be made applicable to Muslims, Christians,
Parsis and Jews, whose marriages are outside the ambit of the parent
law.
For the Christians and Parsis, there are provisions for registration of
marriages under laws applicable to them, viz., the Christian Marriage
Act, 1872, and the Parsi Marriage Act, 1936, respectively. The case of
Muslims is rather different, as Muslim marriage law has never been
codified by an Act that could have made a provision for marriage
registration.
In 1876, a Mohammedan Marriage and Divorce Registration Act was
enforced in the province of Bengal, Bihar and Orissa, furnishing the
facility of optional registration of marriages and divorces with
government-appointed 'Mohammedan Marriage Registrars'. The Act,
however, clarified that neither non-registration would affect the
validity of any marriage nor would mere registration validate a
marriage that is otherwise invalid under Muslim law. This law remains
in force in West Bengal, Bihar and Jharkhand, while Orissa had enacted
it afresh in 1949. A similar law, called the Moslem Marriage and
Divorce Registration Act, was enacted by the Assam legislature in 1935,
which Meghalaya re-enacted after the creation of that state. No such
law has ever been enacted in any other state.
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=bf7e3b2c-655c-4a43-a58b-020159
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