My this post, compels me to ask a question "Is it too much to ask from a marriage a piece of paper, a marriage certificate?". It seems appalling that even after more than 50 years of Independence, we still do not have any compulsory legislation for the registration of marriages in India and we are still fighting for gender equality.
Beginning in the 19th century with Raja Ram Mohan Roy, there has been a concerted effort to bring an end on Sati, Child marriage, and Untouchability. The Constitution guaranteed women equality to women at par with men. Since India consists of a plural system of laws where four major communities have their religion based Personal laws, Hindu, Muslim, Christian and Parsi.
After continous struggle and battle lead by great leaders, in 1955 series of laws were enacted which guaranteed certain rights to Hindu women like, Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; and the Hindu Adoptions and Maintenance Act, 1956, Legislative measures like the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, continued the process of reforms.
The above laws to some extent help Hindu women get over the obstructions imposed by the society, however there are certain aspects of these laws that desperatly need to changed keeping in mind the current societal practices. One of them, includes compulsory registration of marriage under the Hindu Marriage Act.
Currently Registration of marriages under Section 8 of Hindu Marriage Act (1955) states -
(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.
(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.
In simple words it means, that there exists a provision for registration of marriages. And, it's left to the contracting parties to either solemnize the marriage before the sub-registrar or register it after performing the ceremony in conformity with Hindu beliefs. However, the Act makes the provision that the validity of the marriage will in no way be affected by omission to make the entry in the register.
On the other hand,
Under the Special Marriage Act, 1954, which is valid for any Indian citizen, irrespective of religion, each marriage is registered by marriage officers specially appointed for the purpose.
Registration of marriage is compulsory under the Indian Christian Marriages Act, 1872. Under the Act, entries are made in the marriage register of the church, soon after the ceremony, along with the signatures of the bridegroom, the bride, the officiating priest and witnesses.
Parsi Marriage and Divorce Act, 1936 makes necessary Registration of Marriages.
In Muslim law, a marriage is regarded as a civil contract and the qazi, or officiating priest, also records the terms of the marriage in a nikahnama, which is handed over to the married couple.
Therefore only under the Hindu Personal Law it is not compulsory to register the marriage. However certain state governments, did impose compulsory marriage registration law inorder stop the crimes committed against women and children and aimed at giving legal status to wedlock and to strengthen the institution of marriage. For example -
- The Bombay Registration of Marriages Act, 1953. This Act applies to the States of Maharashtra and Gujarat
- The Karnataka Marriages Act, 1976 in force since 1983
- The Himachal Pradesh Registration of Marriage Act, 1997
- Andhra Pradesh passed the Compulsory Registration of Marriage Act, 2002
But in September 2000, the Union government rejected the National Human Rights Commission's proposal for compulsory registration of Hindu marriages -- as had the Narasimha Rao government in 1994 and the Deve Gowda government in 1996.
Two major problems, arising from non-registeration of marriage under Hindu Marriage Act are as mentioned below :
The provisions of the Hindu Marriage Act on bigamy are admittedly faulty. So is Section 494 of the Indian Penal Code which deals with the offence of "marrying again during the life time of husband or wife". Both of them requires certain ceremonies to be performed for a marriage that is valid and binding. The ceremonies depend upon one's caste and religion. If they are not performed there is no marriage even between a couple who are entitled to marry. The same logic was applied to bigamous marriage. Non registration of marriage affect women the most. Women most prominently victims of bigamous relationships and property disputes face enormous hardship in establishing their marriage as they have no proof of marriage. It has been seen in number of cases of bigamy the wives are losing their cases by reason of their failure to prove the first or second marriage of their husbands.
Another serious national problem is Child marriage and it is estimated roughly a half of all marriages taking place in India in a year the girls are underaged. The Child Marriage Restraint Act, 1929, prescribes the minimum age of 18 years for girls and 21 years for boys for contracting marriage, and "extends to the whole of India except the State of J&K and it applies also to all citizens of India without and beyond India." Rajasthan, Madhya Pradesh, Uttar Pradesh, Haryana, Orissa, Chattisgargh, Jharkhand and Bihar, where child marriages are rampant, haven't moved towards compulsory registration.
Certain Advantages for the compulsory registration of marriages :
The certificate is a Government document, which provides valuable evidence of marriage.
It is useful while accompanying wife/husband to foreign country.
If a person dies without nomination for bank deposit or life insurance policy, it will be useful to get such money in the name of husband/wife.
Registration would prevent child marriages and thereby prevent sale of girls and trafficking.
Registrar will verify whether the marriage had in fact taken place in accordance with the personal law applicable to the spouses. He will specifically mention, in a special column, the presence of the spouses before issuance of marriage certificate.
It is suprising to note that, the Central Government has made it mandatory for all States to make compulsory birth registration and also asked to legislate for compulsory registration of marriages. The reasoning is that the States are in a better position to know the social structure and local conditions prevailing in the respective states.
Then applying the logic for mandatory birth registration why isn't the Central Government making marriage registration compulsory for the whole of India?
The only solution possible -
The National Commission for Women through The Marriage Bill, 1994 had recommended for the enactment of a uniform law relating to marriages and providing for the compulsory registration of marriages, with the aim of preventing child marriages and also polygamy in the society. This was a result of wide consultation and deliberation. Unfortunately, this and other recommendations have been forgotten.
The solution is to insist on regularisation of marriage and the ceremonies, will then be optional. The registrar will demand a signed declaration that neither party has a spouse living, something that will deter everyone. Political will is the need of the hour for such a law, which is extremely necessary to curb child marriages and bigamy. This law has to be made widely disseminated through all medium of communication.
It is amply clear that it is necessary to have a Uniform Civil Code and the state should act upon Article 44. A Uniform Civil Code will not take away religious ceremonies and rituals. It will empower women and children by giving protection and ensuring gender just laws. It is high time we had a nationwide debate over it and pass a law on Compulsory Registration of Marriage.
We have to take a holistic approach when we talk about crimes against women. There has to be an integrated approach to the marriage law, dowry law, divorce law, property rights, maintenance and child custody. We have to work together the people, the judiciary, the NGOs, the police, lawyers and National Commission for Women. Attitudinal change has to be brought out and last but not the least gender disparities removed from the cradle itself. Because laws will be meaningless if the social attitudes subjugating the girl are not removed.
Till such time that we change the social fabric of the society, dowry will survive in a greedy consumer and commoditised society where girls are battered and harassed and even killed for a motorcycle or a car.
(*Disclaimer - Above information has been collected from various sources.)