Marriage is a purely
civil contract in Islam where certain verses of the holy Quran are
recited. The element of free consent forms the bedrock of this
contract. One fails to understand where is the requirement of getting
approval from the mosque before solemnisation of marriage as claimed by
the clergy. Quran ordains people to reduce to proper writing their
mutual transactions, howsoever small they may be. In the testing and
difficult times when foreigners from middle-east come to India to dupe
the innocent girls, the need of not only registration of marriages but
of divorces irrespective of the religion becomes inevitable. The bill
drafted by the National Commission of Women (NCW) in 1995 lists the
procedure and mechanism of registration within 30 days after the
solemnisation of marriage.
The whole debate surrounding the compulsory registration cropped up
when Supreme Court directed all the states and the union territories on
14 April 2006 to notify rules for compulsory registration of marriages.
Instead of directing the state governments to notify rules, it might
have requested the Parliament to come up with a law to regulate the
registration of marriages. Therefore, it would have been expedient if
Supreme Court had requested the parliament to bring a law making
registration of marriages compulsory.
The laws governing registration of marriages date back to 1886, when
the Birth, Death and Marriage Registration Act was passed by the
British This law could not make much headway with regard to
registration of marriages but it was successful with registration of
birth and death. Long after, in 1953, the erstwhile State of Bombay
promulgated a law, ‘Bombay Registration of Marriages Act’ for
compulsory registration of marriage. In the same vein, Karnataka
Marriages (Registration and Miscellaneous Provisions) Act, 1973,
Himachal Pradesh Registration of Marriages Act, 1996 and Andhra Pradesh
Compulsory Registration of Marriages Act, 2002 provided for the
compulsory registration of marriages. In five Indian states there are
provisions for voluntary registration of Muslim marriages. These states
are Assam, Bihar Meghalaya, Orissa and West Bengal. .
The proposed bill by NCW has no different provisions than the erstwhile
Bombay law. Certain religious leaders irrespective of the religious
affiliations are in favour of voluntary registration of marriage.
However, if the registration is interfering in the basic tenets of
religion then why allow voluntary registration? When voluntary
registration is not interfering, then compulsory registration is also
no threat. Moreover, voluntary registration proposition is bound to
fail as has been our experience with voluntary registration provision
in Section 8(2) of the Hindu Marriage Act, 1955. Lessons must be learnt
from the countries like Bangladesh, where laws for compulsory
registration of marriage are in vogue for the last three decades at
least. Quick perusal of laws relating to marriage will reveal that
Egypt, Iran and Pakistan have effective provisions and mechanisms for
compulsory registration.
The entries 5 and 30 of the concurrent list of the Constitution empower
the parliament to legislate on the registration of marriages as it
comes under ‘vital statistics’. The other problem is that states need
to frame laws for every religion separately. The governments of all
states have to make rules under section 8(2) of Hindu Marriage Act,
1955 for compulsory registration of Hindu marriages. Similarly, rules
need to be framed under Christian Marriage Act, 1872 and Parsi Marriage
Act, 1938 for Christians and Parsis respectively. A law is to be made
freshly for Muslims because at present there is no codified law for
registering Muslim marriages. The whole exercise is so cumbersome that
lot of confusion would arise in different laws of different states. The
only solution is to have a central legislation. Of course, registration
of marriages and divorces is not the panacea for all the ills
afflicting the society but certainly it would go a long way in
addressing the grievances of the suffering women and children. The
in-laws of the widow deny the factum of marriage in most of the cases
to usurp the property of the deceased husband. If marriage is
registered, it will become next to impossible to deny the marriage by
the in-laws. If a person dies without nomination for the bank deposit
or life insurance policy, marriage certificate would be the proof for
claim.
Government could provide in the law dealing with compulsory marriage
registration that for the employment in public or private services the
showing of marriage certificate is must. This will give a fillip to the
efforts of the government to register marriage.
The people, media, politicians, religious leaders and civil society
must welcome the effort of the NCM to have come forward with the draft
legislation.
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