Vs. Ashwani Kumar  Insc 74 (14 February 2006)
Pasayat & S.H. Kapadia Arijit Pasayat, J.
origin of marriage amongst Aryans in India, as noted in Mayne's Hindu Law and Usage, as amongst other ancient
peoples is a matter for the Science of anthropology. From the very commencement
of the Rigvedic age, marriage was a well- established institution, and the
Aryans ideal of marriage was very high.
Convention on the Elimination of All Forms of Discrimination Against Women (in
short 'CEDAW') was adopted in 1979 by the United Nations General Assembly.
India was a signatory to the Convention
on 30th July, 1980 and ratified on 9th July, 1993 with two Declaratory Statements and
one Reservation. Article 16(2) of the Convention says "though India agreed on principle that compulsory
registration of marriages is highly desirable, it was said as follows:
is not practical in a vast country like India with its variety of customs, religions and level of literacy' and has
expressed reservation to this very clause to make registration of marriage
a transfer petition was being heard it was noted with concern that in large
number of cases some unscrupulous persons are denying the existence of marriage
taking advantage of the situation that in most of the States there is no
official record of the marriage. Notice was issued to various States and Union
Territories and learned Solicitor General and Mr. Ranjit Kumar, learned senior
counsel were requested to act as Amicus Curiae to assist the Court in laying
down guidelines in the matter of registration of marriages.
exception, all the States and the Union Territories indicated their stand to the effect
that registration of marriages is highly desirable.
been pointed out that compulsory registration of marriages would be a step in
the right direction for the prevention of child marriages still prevalent in
many parts of the country. In the Constitution of India, 1950 (in short the
'Constitution') List III (the Concurrent List) of the Seventh Schedule provides
in Entries 5 and 30 as follows:
"Marriage and divorce; infants and minors; adoption; wills, intestacy and
succession; joint family and partition; all matters in respect of which parties
in judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law. 30. Vital statistics including
registration of births and deaths." It is to be noted that vital
statistics including registration of deaths and births is covered by Entry 30.
The registration of marriages would come within the ambit of the expression
the compilation of relevant legislations in respect of registration of
marriages, it appears that there are four Statutes which provide for compulsory
registration of marriages. They are:
Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat),
Marriages (Registration and Miscellaneous Provisions) Act, 1976,
Pradesh Registration of Marriages Act, 1996, and
Pradesh Compulsory Registration of Marriages Act, 2002. In five States
provisions appear to have been made for voluntary registration of Muslim
marriages. These are Assam, Bihar, West
Bengal, Orissa and Meghalaya.
The "Assam Moslem Marriages and Divorce Registration Act, 1935," the
"Orissa Muhammadan Marriages and Divorce Registration Act, 1949" and
the "Bengal Muhammadan Marriages and Divorce Registration Act, 1876"
are the relevant statutes. In Uttar Pradesh also it appears that the State
Government has announced a policy providing for compulsory registration of
marriages by the Panchayats and maintenance of its records relating to births
the Special Marriage Act, 1954 which applies to Indian citizens irrespective of
religion each marriage is registered by the Marriage Officer specially
appointed for the purpose. The registration of marriage is compulsory under the
Indian Christian Marriage Act, 1872. Under the said Act, entries are made in
the marriage register of the concerned Church soon after the marriage ceremony
along with the signatures of bride and bridegroom, the officiating priest and
the witnesses. The Parsi Marriage and Divorce Act, 1936 makes registration of
marriages compulsory. Under Section 8 of the Hindu Marriage Act, 1955 (in short
the 'Hindu Act') certain provisions exist for registration of marriages.
However, it is left to the discretion of the contracting parties to either
solemnize the marriage before the Sub-Registrar or register it after performing
the marriage ceremony in conformity with the customary beliefs. However, the
Act makes it clear that the validity of the marriage in no way will be affected
by omission to make the entry in the register. In Goa, the Law of Marriages which is in force in the
territories of Goa, Daman and Diu w.e.f. 26.11.1911 continues to be
in force. Under Articles 45 to 47 of the Law of Marriages, registration of
marriage is compulsory and the proof of marriage is ordinarily by production of
Certificate of Marriage procured from the Register maintained by the Civil
Registrar and issued by the concerned Civil Registrar appointed for the purpose
by the Government. The procedural aspects about registration of marriages are
contained in Articles 1075 to 1081 of the Portuguese (Civil) Code which is the
common Civil Code in force in the State. It is pointed out in the affidavit
filed on behalf of the respondent-State of Goa that the Hindu Act is not in
force in the said State since it has not been extended to the State either by
the Goa, Daman and Diu Laws Regulations, 1962 or by the Goa, Daman and Diu Laws
No.2 Regulations, 1963 by which Central Acts have been extended to the State
after the liberation of the State. Procedure for marriages is also provided in
Code of Civil Registration (Portuguese) which is in force in the State. The
Foreign Marriage Act, 1969 also provides for registration of marriages.
noted above, the Hindu Act enables the State Government to make rules with
regard to the registration of marriages. Under Sub-section (2) of Section 8 if
the State Government is of the opinion that such registration should be
compulsory it can so provide. In that event, the person contravening any rule
made in this regard shall be punishable with fine.
States different marriage Acts are in operation e.g. in Jammu and Kashmir,
Jammu and Kashmir Hindu Marriage Act, 1980 empowers the Government to make
rules to provide that the parties (Hindus) shall have their particulars
relating to marriages entered in such a manner as may be prescribed for
facilitating proof of such marriages. Admittedly, no rules have been framed. As
regards Muslims, Section 3 of the Jammu and Kashmir Muslim Marriages Registration Act, 1981 provides that
marriage contracted between Muslims after the commencement of the Act shall be
registered in the manner provided therein within 30 days from the date of
conclusion of Nikah ceremony. However, the Act has not been enforced. So far as
Christians are concerned, the Jammu and Kashmir Christian Marriage and Divorce Act, 1957 provides for registration of
marriages in terms of Sections 26 and 37 for registration of marriages
solemnized by Minister of Religion and marriages solemnized by, or in the
presence of a Marriage Registrar respectively.
exercise of powers conferred by Section 8 of the Hindu Act the State of U.P. has framed U.P. Hindu Marriage Registration Rules,
1973 which have been notified in 1973. In the affidavit filed by the State
Government it is stated that the marriages are being registered after enactment
of the Rules.
In Pondicherry, the Pondicherry Hindu Marriage
(Registration) Rules, 1969 have come into force w.e.f. 7th April, 1969. All Sub-Registrars of Pondicherry
have been appointed under Section 6 of the Indian Registration Act, 1908 (in
short the 'Registration Act') as Marriage Registrars for the purposes of
registering marriages. In the State of Haryana, the Haryana Hindu Marriage Registration Rules, 2001 under Section 8 of
the Hindu Act have been notified. In the State of West Bengal, Hindu Marriage Registration Rules,
1958 have been notified.
the affidavit filed on behalf of the State of Tripura, it appears that the said State has introduced rules called
Tripura Hindu Marriage Registration Rules, 1957. It has also introduced Tripura
Special Marriage Rules, 1989 under the Special Marriage Act, 1954. So far as
the State of Karnataka is concerned, it appears that
Registration of Hindu Marriages (Karnataka) Rules, 1966 have been framed. It
further appears that Karnataka Marriages (Registration and Miscellaneous
Provisions) Act, 1976 has been introduced. Section 3 of the Act requires
compulsory registration of all marriages contracted in the State.
as the Union Territory of Chandigarh is concerned, Hindu Marriage Registration
Rules, 1966 have been framed.
affidavit filed on behalf of the National Commission for Women (in short the
'National Commission') it has been indicated as follows:
the Commission is of the opinion that non-registration of marriages affects the
most and hence has since its inception supported the proposal for legislation
on compulsory registration of marriages. Such a law would be of critical
importance to various women related issues such as:
child marriages and to ensure minimum age of marriage.
marriages without the consent of the parties.
women to claim their right to live in the matrimonial house, maintenance, etc.
to claim their inheritance rights and other benefits and privileges which they
are entitled to after the death of their husband.
from deserting women after marriage.
parents/guardians from selling daughters/young girls to any person including a
foreigner, under the garb of marriage." As noted supra, except four
statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh
registration of marriages is not compulsory in any of the other States.
evident from narration of facts though most of the States have framed rules
regarding registration of marriages, registration of marriage is not compulsory
in several States. If the record of marriage is kept, to a large extent, the
dispute concerning solemnization of marriages between two persons is avoided.
As rightly contended by the National Commission, in most cases non registration
of marriages affects the women to a great measure. If the marriage is
registered it also provides evidence of the marriage having taken place and
would provide a rebuttable presumption of the marriage having taken place.
the registration itself cannot be a proof of valid marriage per se, and would
not be the determinative factor regarding validity of a marriage, yet it has a
great evidentiary value in the matters of custody of children, right of
children born from the wedlock of the two persons whose marriage is registered
and the age of parties to the marriage. That being so, it would be in the
interest of the society if marriages are made compulsorily registrable. The
legislative intent in enacting Section 8 of the Hindu Act is apparent from the
use of the expression "for the purpose of facilitating the proof of Hindu
natural consequence, the effect of non registration would be that the
presumption which is available from registration of marriages would be denied
to a person whose marriage is not registered.
we are of the view that marriages of all persons who are citizens of India belonging to various religions
should be made compulsorily registrable in their respective States, where the
marriage is solemnized.
we direct the States and the Central Government to take the following steps:
for registration should be notified by respective States within three months
from today. This can be done by amending the existing Rules, if any, or by
framing new Rules. However, objections from members of the public shall be
invited before bringing the said Rules into force. In this connection, due
publicity shall be given by the States and the matter shall be kept open for
objections for a period of one month from the date of advertisement inviting
objections. On the expiry of the said period, the States shall issue appropriate
notification bringing the Rules into force.
appointed under the said Rules of the States shall be duly authorized to
register the marriages. The age, marital status (unmarried, divorcee) shall be
consequence of non-registration of marriages or for filing false declaration
shall also be provided for in the said Rules.
to add that the object of the said Rules shall be to carry out the directions
of this Court.
As and when the
Central Government enacts a comprehensive statute, the same shall be placed
before this Court for scrutiny.
for various States and Union Territories shall ensure that the directions given herein are carried
Registry is directed to handover a copy of this order to learned Solicitor
General for necessary follow-up action.
record our appreciation for the valuable assistance rendered by Mr. G.E. Vahanvati,
the Solicitor General and Mr. Ranjeet Kumar, senior advocate, who appeared as