Registration of Marriage under the Hindu Marriage Act
The article deals specifically with the concept of Registration of Marriage under the Hindu Marriage Act.
Introduction The article deals specifically with the concept of Registration of Marriage under the Hindu Marriage Act. The traditional Hindu Law never required any registration for marriage to be a mandatory provision, nor is it thus speculated in the statute. The discretion in this regard has been put on the respective states to formulate laws with regard to registration. Registration of Marriage The registration of marriage, as provided under Section 8 of the Hindu Marriage Act, 1955,...
Introduction
The article deals specifically with the concept of Registration of Marriage under the Hindu Marriage Act. The traditional Hindu Law never required any registration for marriage to be a mandatory provision, nor is it thus speculated in the statute. The discretion in this regard has been put on the respective states to formulate laws with regard to registration.
Registration of Marriage
The registration of marriage, as provided under Section 8 of the Hindu Marriage Act, 1955, is an attempt by the legislature to create a mode of proof of marriage. The concept of registration of marriage amongst the Hindus came with the Hindu Marriage Act, and no such provision was mandatory for the Hindus traditionally.[1] Even the Hindu Marriage Act does not make marriage registration compulsory though it stipulates that the facility for marriage registration may be provided.
Under the Act, marriage between two Hindus can only be registered. It was held in the case of M. Vijayakumari v. K. Devabalan, AIR 2003 Ker 363, that a marriage between a Hindu man who converted to Christian and a Christian lady in a Hindu form is not a valid marriage. According to Section 5 of the Act, marriage can be solemnized between two Hindus.
There are certain ceremonies that can be followed for entering into a marital union. These ceremonies may vary according to the customs of a community. These are ceremonies known and recognized by communities and persons. After the marriage ceremony, this act provides for registration of the marriage. After the marriage ceremony, this act provides for registration of the marriage.
As per the decision and recommendation of the Supreme Court in Seema v. Ashwin Kumar,[2] the desirability of compulsory registration was recommended. It was recommended by the Supreme Court in this case, that marriages of all citizens of India belonging to various religions should be made compulsorily registerable in the States where they are solemnized. The Supreme Court also gave directions to all the States and Union Territories to file a compliance report and granted three months as the compliance period.
In the case of V.D. Grahalakshmi v. T. Prashanth, AIR 2012 Mad. 34, the court observed that the marriage registration would not go to show a marriage was solemnized as per the conditions laid down in Section 7 of the Act. Because the registration of marriage is not substantial proof of Hindu marriage if one party repudiates his marriage. The effects of the production of a certificate are only to the extent that the parties have made statements before public authority. Such marriage registration is only for the purpose of facilitating the proof of the marriage.
Section 8 of the Hindu Marriage Act, 1955, enacts that the state government may make rules relating to the registration of marriages between two Hindus solemnized in the ceremonial form. The advantage of registration is that it facilitates proof of the factum of marriage in disputed cases[3]. The Act does not lay down any rules relating to registration but merely empowers the state government to make rules providing for the registration of Hindu marriages. It also empowers the state government in its discretion to provide that such registration shall be compulsory[4].
Procedure for Registration
The rules can provide that the parties to any Hindu marriage may, and where registration is made compulsory, shall have the requisite particulars relating to their marriage entered into in the Register of Marriages. Sub-section (1) speaks of the “parties to the marriages” and sub-section (2) speaks of “any person” contravening any rule made on behalf, and it seems that the duty of giving particulars relating to the marriage may be cast on persons other than the parties, for instance, the parents of the parties or the priest who officiates at the marriage ceremonies[5].
For the registration of marriage presence of both parties before the Registrar is not necessary. If the Registrar doubts the identity of one of the parties, only then is it needed.[6] The Madras High Court in Kagavalli v. Saroja[7] has also opined that marriage registration should be made compulsory. Section 8 states that the State Governments may make rules for keeping marriage registers and for compulsory entries of all marriages or some specified marriage therein.
Section 8(5) specifically lays down that failure to register a Hindu Marriage shall, in no way, affect its validity. It deals with only marriage registration that has already been solemnized. For solemnization, conditions must be fulfilled.
In a decision rendered by the Kerala High Court, it was held that registration of marriages was only to be done at the Marriage Registration office, and directions were issued in this regard[8]. In a similar judgment by the Orissa High Court where it was held that a document styled as a deed of marriage would not prove the marriage[9] where a Christian lady claimed having been married to a Hindu. In a case's peculiar facts, marriage registration through a power of attorney was permitted as the spouses lived abroad and could not travel to India with their young child[10].
A marriage registered even before the actual marriage ceremony, violates the statutory provisions[11]. The Register of Marriages is to be open for inspection by any member of the public and entries made in it are admissible as evidence. A certificate of marriage is no proof of validity if the marriage is otherwise void, it can however be proof of identity of parentage of offspring of such marriage[12] It has now been held that it is desirable that all marriages should be compulsorily registered in the State where they are solemnized [13].
The first step in this marriage registration process is to apply to the sub-registrar under whose jurisdiction the marriage has been solemnized or either party to the marriage has been residing. Both partners will need to fill in the application form duly signed and submitted along with two photographs of the marriage ceremonies, invitation card of marriage, age and address proof of both parties, and affidavit of notary/Executive Magistrate to prove that the couple is married under Hindu Marriage Act 1955.
Two Hindus whose marriage is solemnized in accordance with the provisions of the Act can get their marriage registered under Section 8, and the effect of such registration is stated in Section 18 of the enactment.
A Gazetted Officer should attest all the documents, and the parties will have to deposit a fee with the cashier at the sub-registrar and attach the receipt with the Application Form. Once the application has been submitted and the documents verified, the concerned officer will assign a date of registration when the marriage certificate document will be issued.
Under the Hindu Marriage Act, 1955, certain conditions have to be fulfilled to consider the marriage between the parties legal and valid. These conditions have been specified under Section 5 and Section 7 of the Act. Under section 5 of the Hindu Marriage Act 1955, a marriage is considered valid only if both parties to the marriage are Hindus. If either of the party to the marriage is a Muslim or a Christian, then the marriage will not be a valid Hindu marriage.
After due verification of all the documents that have been submitted by the parties for the concluding process, a day is fixed for the registration, which is communicated to the parties. Both parties must be present on the day before the Sub-Divisional Magistrate, along with the Gazetted Officer. Once the marriage registration process is done and the SDM is satisfied with the proceedings, the certificate is granted on the same day.
Consequences of non-registration and penalty for failure to register
Registration of Hindu marriages under the Act is only for the purposes of preserving a record of the same and facilitating their proof. Omission to do so does not, even when registration is made compulsory by the state, affect in any manner the validity of the marriage but will invite the penalty of a fine, which may extend to Rs 25[14]. Sub-section (4) gives an unrestricted right to any member of the public to obtain a certified copy of an entry in the register on payment of the prescribed fee.
Conclusion
Therefore, it can very well be seen how the statute has been made flexible to the needs of the people. The ceremonies are a must for construing a marriage as a valid marriage, and the Registration of Marriage, which does facilitate as proof of marriage, is not the only requirement of constituting a valid marriage. The statute has given its due importance to the customary rites and ceremonies, the performance of which would constitute a valid marriage. It has also been held that where no ceremony of marriage has taken place, mere registration has no meaning and would be null and void.[15]
[1] Dr. Paras Diwan, Modern Hindu Law, p. 92
[2] AIR 2006 SC 1158
[3] Mulla Hindu Lawp.1341
[4] Mulla Hindu Law, p.1341
[5] Mulla Hindu Law, p.1341
[6] Nishana Mol v. Alappuzha Municipality 2009 Ker 203
[7] 2002 Mad 73
[8] S.M. Syed Abdul Basith v. Assistant Commissioner of Police, Ernakulam, AIR 2009 NOC 2413
[9] Margaret Palai v. Savitri Palai, AIR 2010 Ori 45.
[10] Upasana Bali v. State of Jharkhand, AIR 2013 Jha 34
[11] Rajesh Rajan v. Chief Registrar General of Marriages, Thiruvananthapuram, AIR 2016 Ker1
[12] Kangavalli v Saroja, AIR 2002 Mad 73
[13] Seema v. Ashwin Kumar, AIR 2006 SC 1158
[14] Mulla Hindu Law, p.1342
[15] Valsemma v. Cochin Units, 1996 SC 1011, per Ramaswamy, J.