Compulsory Registration of Marriages: Need & Necessary Reform
The Cumplsory Registration of Marriages is not only a much needed legal reform, it also has the social relevance with implications for the welfare of women and children.
In early July 2017, the Law Commission of India submitted a report on Cumplsory Registration of Marriages to the Union Ministry of Law and Justice. The Cumplsory Registration of Marriages is not only a much needed legal reform, it also has the social relevance with implications for the welfare of women and children. Against this backdrop, it is pertinent to arrive at a threadbare understanding of the issue, which is given below.
What does registration of marriage mean?
Marriage is one of the vital events in one’s life. By recognizing its importance, the United Nations suggested for civil registration of birth, death and marriage. It further defined civil registration of an event as –
The continuous, permanent, compulsory and universal recording of the occurrence and characteristics of vital events pertaining to the population as provided through decree or regulation in accordance with the legal requirements of a country.
What is the need for Compuslory Registration of Marriages in India?
In the absence of compulsory registration of marriages, women and children have been facing innumerable problems. Hence, registration of marriages compulsorily is of critical importance to handle various issues such as -
• To prevent child marriages and to ensure minimum age of marriage
• To prevent of marriages without the consent of the parties
• To check social practices such as bigamy and polygamy
• To enable married women to claim their right to live in the matrimonial house and maintenance
• To enable widows to claim their inheritance rights, other benefits and privileges which they are entitled to after the death of their husband
• To deter men from deserting women after marriage
• To deter parents and guardians from indulging in trafficking of women to any person, including a foreigner, under the garb of marriage
What are the issues involved in enacting Compulsory Registration of Marriages Act?
Though the idea of compulsory registration of marriages has inherent merit in it; legislating on an enabling act has been stopped due to the following issues involved.
Lack of Uniform Civil Code: In India, personal laws play a major role in governing family matters. This situation is creating hurdles in civil registration of an important life event such as marriage. Besides, the diversity among marriage customs of different sections of the society is also a tricky issue to deal with.
Lack of Consensus: There there is a consensus on the compulsion for registration of marriages, all the States/UTs have not legislated on the issue. While States like Punjab, Haryana and Tamil Nadu legislated on the issue, Bihar, Madhya Pradesh and Kerala have issued only rules so far.
Even at the union level, political parties failed to arrive at a meeting point on the issue. During the UPA Government's 2nd term, the Rajya Sabha had passed an amendment to make marriage registration necessary under the Registration of Births and Deaths Act, 1969. The Bill, notwithstanding, couldn't be passed by the Lok Sabha, and later,lapsed.
Conflicting Laws: Conflicts among the existing laws governing the matter is also a major concern for the policy makers. The conflict of laws is not simply between different personal laws, but also various other enactments relating to child marriage, dowry prohibition and medical termination of pregnancy among others.
Moreover, the required age for registration is a question that needs to be decided and answered by comparing the freedom and protection given to age relaxations under all personal law and the social responsibility of bringing reform through law.
For instance, Dowry Prohibition Act 1961 also acknowledges that marriages do in fact, despite the Child Marriages Restraint Act, take place even when parties are under the age of 18. The Dowry Prohibition Act provides that if the dowry was received when the bride was a minor, the dowry should be held in trust by her guardian pending the transfer when she attains the age of 18.
Where as the sections 375, 376 of Indian Penal Code 1861 consider sexual intercourse with a minor as rape, they also contain the exception that ‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’.
What is the situation abroad?
In many countries the official recognition of one’s status or of family-related events such as marriage is only granted when all such events have been reported and registered in the family or civil register.
For instance Japan considers a marriage to be legally effective only when the household register is updated with the knowledge of the event- this is known as Koseki.
In other countries, however, such registers work as centralised repositories for family events that would have legal repercussions which include births, deaths, marriages and even expatriations, as is the case in Germany, where the register is known by the name familienbuch and France, where it is called livret de famille.
In Pakistan, every marriage solemnised under the Muslim law is required to be registered compulsorily under the Muslim Family Law Ordinance, 1961. After passing of the Hindu Marriage Bill, in March 2017, even the Hindus in Pakistan are required to get their marriages registered.
Registration of marriage is not compulsory in all countries. However, most countries recognise the need for such registration. India is one among them.
Existing legislative framework and Supreme Court directions on the Issue
At the Union level, The Indian Christian Marriage Act 1872, The Kazis Act 1880, The Anand Marriage Act, 1909, The Parsi Marriage and Divorce Act, 1936, The Special Marriage Act, 1954, The Hindu Marriage Act, 1955 and The Foreign Marriage Act 1969. The Special Marriage Act, 1954 seeks to encourage inter caste and inter religious marriages.
The Supreme Court and the High Courts have time and again emphasised on the need to make registration of marriages compulsory. The most notable decision came in Seema Vs Ashwani Kumar case. In this judgement, the court directed the government to take necessary steps for compulsory registration of marriages of persons belonging to all religions.
What is the way forward?
Amidst the complexities involved in resolving the issue, the Law Commission has recommended for amending the Registration of Births and Deaths Act, 1969 and include registration of marriages under its purview.
The recommendation doesn’t aim to nullify the existing diversity of personal laws and instead accepts prevailing customs and personal laws concerning the solemnisation of marriage. Moreover, it facilitates the utilization of existing human resources (birth and death registers) for the registration of marriages and consequently avoids additional burden on the exchequer.
Registration of marriage not only help in better implementation of already existing laws that aim at preventing child marriage, it would also aid in eliminating practices such early and forced marriages. It can also be helpful in achieving gender equality and empowering women.