Vs. Ashwani Kumar  Insc 1101 (25 October 2007)
Arijit Pasayat & P. Sathasivam
PETITION 291 OF 2005 Dr. ARIJIT PASAYAT, J.
Pursuant to the order dated 23.7.2006, the matter was placed for our
consideration. By judgment dated 14.2.2006 reported as Smt. Seema v. Ashwani
Kumar (2006 (2) SCC 578), it was directed that all marriages shall be
compulsorily registered. In the said order, it was inter alia noticed as
has been pointed out that compulsory registration of marriage would be a step
in the right direction for the prevention of child marriage still prevalent in
many parts of the country. In the Constitution of India, 1950 (in short the
'Constitution') List II (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.
Vital statistics including registration of births and deaths."
is to be noted that vital statistics including registration of deaths and
births is covered by Entry 30. The registration of marriage would come within
the ambit of the expression 'vital statistics'.
From the compilation of relevant legislations in respect of registration of
marriages, it appears that there are four Statutes which provide for compulsory
registration of marriage. They are :
The Bombay Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat),
The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976,
The Himachal Pradesh Registration of Marriages Act, 1996, and
The Andhra 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 and deaths.
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 birde 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.
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
Register 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 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 marriage 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.
Various 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 herein 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.
7. 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.
position prevailing in several States and Union Territories as follows:
we direct the States and the Central Government to take the following steps:
The procedure 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.
The officer appointed under the said Rules the States shall be duly authorized
to register the marriages. The age, marital status (unmarried, divorcee) shall
be clearly stated.
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.
Learned counsel for various States and Union Territories shall ensure that the directions
given herein are carried out immediately. "
Learned amicus curiae has made reference to the status reports and affidavits
filed by various states and Union territories, and has brought this Court's
notice that some of the States have made registration of marriages by Hindus to
be registered compulsorily but it has not been done in respect of other
religions. By order dated 23.7.2007 with reference to the earlier order dated
14.12.2006, it was directed that the marriages are to be made compulsorily registrable
in respect of persons who are citizens of India even if they belonged to
various religions. Direction was given to file details of compliance.
From the details filed it appears that States of Andhra Pradesh, Bihar, Chattisgarh, Goa,
Himachal Pradesh, Karnataka, Meghalaya, Mizoram, Rajasthan, Sikkim, Tamil Nadu, Tripura have complied
with the direction. So far as the state of West Bengal is concerned, it has
been submitted by the learned counsel for the State that on 22.12.2006, changes
have been made to the West Bengal Special Marriages Rules, 1969, registration
of Muslim marriages & Divorces Registration Rules and Hindu Marriage Act
for the purpose of making marriages compulsorily registrable and providing for
consequences for not doing it. It has been pointed out that Christian and Parsi
marriages are solemnized through compulsory registration according to the
no separate rules have been framed in this regard.
as other States and Union Territories are concerned, some of them have not filed any affidavit
and in respect of others, the directions have been compiled with respect of
Hindus. The directions given by the order dated 24.2.2006 have not been fully
complied with. We, therefore, direct that the States and Union Territories who have not acted in line with the directions given on
14.2.2006 shall forthwith do it and in no case later than three months from
today. It is ordered accordingly.
Place this matter after four months.
The affidavits indicating compliance shall be filed before the next date of hearing.