Marriage Registration: Whether Compulsory or Not?
This article “Marriage Registration: Whether Compulsory or Not?” provides an overview of the law pertaining to the registration of marriages in India. Introduction It has been alleged that “The great marriages are partnerships. It can’t be a great marriage without being a partnership” by Helen Mirren. In order to establish marriage as a partnership, there needs to be… Read More »
This article “Marriage Registration: Whether Compulsory or Not?” provides an overview of the law pertaining to the registration of marriages in India.
Introduction
It has been alleged that “The great marriages are partnerships. It can’t be a great marriage without being a partnership” by Helen Mirren. In order to establish marriage as a partnership, there needs to be a legal validation for the same. There are two main points that should be acknowledged firstly, in India at central level there is no law that makes marriage registration compulsory and secondly, several states within India have come up with their state legislation to make registration of marriage compulsory.
As long as Hindu marriage is concerned, marriage registration is not compulsory except in those states where compulsory marriage registration act has been passed such as Uttar Pradesh. Those individuals who had married but had not registered their marriage are bound by penalty and such penalty being charged at a lesser extent. For Muslims, Christians and Parsi’s registration of marriage is compulsory by one or the other way.
Constitutionality
Constitution of India encompasses three lists in 7th schedule which are termed as union list, state list and concurrent list. Union list includes all those subjects on which central level can make laws, state list in which state-level can make laws, concurrent list in which center, as well as state, can make laws and marriage is enshrined in concurrent list entry 5.
The bill for amending Registration of Birth and Death Act is pending before parliament and if such bill passes then at central level the provision for registration will not be only for birth or death but also for marriage. And after amendment birth, marriage and death act will be formed. In 2006, the Supreme Court in the case of Seema v. Ashwani Kumar[1] laid that different state at state level should come up with laws regarding marriage registration and subsequently several states passed aforesaid law.
Procedure
Registration of marriage presupposes a certain procedure. The basic requirement for registration being the competency of age i.e. the boy and the girl should have attained 21 and 18 years respectively, no spouse of either party be living, both should have a healthy state of mind, both should not be in a prohibition relation with respect to Hindu law and changes in Muslim law wherein one can marry within prohibited degrees.
If a person wants to marry and register their marriage then there are two different aspects as to the religion of parties.
Procedure under the Special Marriage Act, 1954
First aspect includes marriage registration under Special Marriage Act, wherein as per procedure the parties to the marriage has to submit expressly in writing to the registrar or sub-registrar of that particular area where any one of two parties has resided for 30 days or the place where their marriage was solemnized that both are willing to marry.
Some fee of registration has to be paid to the registrar then the registrar in his official notice having time limit of 3 months which indicates that they both are willing to marry and if any person is having a problem with their marriage may contact the registrar and he with the help of sub-registrar will work for solving the problem.
Then after 30 days of solving of the problem, the boy and the girl are called to the office with all the required documents including age proof, residence proof, etc. and with 3 witnesses. Then a small ceremony will be performed and a marriage certificate will be given on stamp paper after successfully registering the marriage.
Procedure under Personal Laws
And the second aspect includes registration of marriage under personal laws. Under the Hindu law registration is not compulsory until and unless the state makes it compulsory. The procedure will be same as under Special Marriage Act only the number of witness changes from three to two. Marriage under Muslim law is a contract and hence registration is the basic essential for validating Nikah. Their procedure is operated in a different way.
When there is nikah between two Muslims then the Kafi or Imam takes consent of girl and boy respectively thereafter recites prayer from Holy Quran and then in Urdu as well as in Hindu language fills a form and gives its copy to both the parties and adds to his register likewise following every month whatever solemnization he has done and forwards to the registrar and their registration is made.
Basically, if Muslims marry according to Shariat Act then registration and such Nikah Nama gets evidence validity. In Christian, the marriage is solemnized as per the Indian Christian Marriage Act and registration of marriage is compulsory. The procedure includes the place where the marriage was solemnized and the priest who held marriage solemnized and other related documents, then the registration is done. In Parsi the marriage is solemnized according to the Parsi Marriage and Divorce Act and was made compulsory to register under such act.
Conclusion
Although there is no need to register a marriage with respect to central level and wheatear you are of any religion and marry under any law, be it Special Marriage Act or Personal laws, ensure its registration.
In Seema v. Ashwani Kumar[2]Supreme Court also held that when one’s marriage gets registered then at later point of time if any type of disparity comes be it disparity as to custody of the child or to take maintenance or a matter of succession or will then the certificate of marriage will work as evidence in court and it will get easy to prove that the marriage has happened.
And the bill namely, Registration of Birth and Death Amendment Bill, 2010 should pass as soon as possible and a uniform law for all states can get enacted by which registration of marriage can be made compulsory. Also, a certain amount of penalty can be imposed so as to prevent any infringement. Considering the majority population of Hindus in India, it gets prima facie to register pertaining to marriage.
Ashutosh Rajput
The author is a law student of Hidayatullah National Law University, Raipur
[1] AIR 2006 SC 1158
[2] Supra note 1
