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Report No. 96

12. Kazis Act, 1880 (12 of 1880)

The Act appoints Kazis for certain areas, i.e., areas where Kazis are, by custom, required to perform marriage ceremonies and other rites between Muslims. Section 2 of the Act provides that where a considerable number of Mohammedans reside in an area and desire the appointment of Kazis, the Government, after prior consultation with the residents, can appoint one or more Kazis for such area. The Government can also appoint Naib Kazis for whole or part of that area. The Government is further empowered by the Act to remove any such Kazis for his insolvency, misconduct or absence from the area for more than six months.

Section 4 provides that these Kazis have no judicial or administrative powers, and their presence in every marriage ceremony is not essential. The local Kazis (who are not so appointed) are allowed to function. There seems to have been an impression prevailing at some time that the presence of a Government appointed officer was necessary at a Muslim marriage. It has, however, been pointed out1 by a distinguished writer that this is not correct. "The Kazi is ordinarily present. The Kazi in India is the mere keeper of a marriage register. His function is purely evidentiary. It is a mistake to suppose that he joins the couple in marriage; the marriage takes effect by operation of law on the contract being completed between the parties."

According to Tayabji,2 there can be no monopoly in any person to officiate at marriages, since the law of Muslims does not require that function (officiating at marriages) to be performed by any special officer: "custom proved in such cases giving an exclusive right to "Cadies" to write and register marriage contracts is really meaningless in view of the fact that the marriage need not be written down or registered and no official is recognised as having exclusive privilege of performing this function."

The subject-matter of the Act seems to fall within the Concurrent List, Entry 5, "Marriage and Divorce all matters in respect of which parties in judicial proceedings were, immediately before the commencement of the Constitution, subject to their personal law". Mention may also be made of Concurrent List, Entry 12. "Evidence and Oaths recognition of laws, public acts and records". In one ease3 from Karnataka, it was held that the previous approval of the State Government was not necessary for the appointment or removal of a Naib Kazi.

Action to be taken.-From the number of reported cases on the Act,4-6 some of which are fairly recent, it would appear that not infrequent use has been made of the Act. In the circumstances, it is not possible to recommend its repeal.

1. Fyzee Outlines of Mohammedan Law, (1974), p. 92

2. Tayabji Muslim Law, (1968), p. 40, para. 15.

3. Wahab Siddiqui v. Government of Karnataka, AIR 1975 Karn 133.

4. (1972) 2 Andh WR 327, summarised in (1971-75) Quinquennial Digest, Vol. 4, Col. 543.

5. Wahab Siddiqui v. Government of Karnataka, AIR 1975 Karn 133.

6. Khazi Mohammed v. Andhra Pradesh Waqf Board, AIR 1979 AP 116 (object of the Act discussed in detail).

Repeal of Certain Obsolete Central Acts Back

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