Report No. 270
Chapter - V
Revisiting the Reports of the Law Commission of India
5.1 The 18th Law Commission of India began its work on the request of the Supreme Court of India, in Writ Petition (Criminal) No. 81 of 200624, to assist it on certain issues relating to child marriage. The Commission submitted its 205th Report which suggested a law which will eradicate the evil of child marriages. One of the recommendations in this report reads as under: "Registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government."
5.2 The 18th Commission took up the subject of Registration of Marriage and Divorce, suo motu in light of the directions of the Supreme Court dated 14.2.2006 in Seema v. Ashwani Kumar25 that all marriages shall be compulsorily registered and that the State Governments shall initiate action for rule-making in this regard. The Commission examined the existing enactments and observed in its 211th Report that there is a great diversity in respect of laws for registration of marriages.
5.3 The 18th Commission also noted that the Births, Deaths and Marriages Registration Act, 1886 which states that "Births and Deaths" are to be registered under the Act by the Registrars of Births and Deaths appointed by the State, but there is no provision for registration of marriages and hence the title of the Act is somewhat misleading. Under the Act, Registrar-General of Births, Deaths and Marriages is to keep proper Indexes of the certified copies of Marriage Registers received by him under the provisions of the Special Marriage Act, 1954, Indian Christian Marriage Act, 1872 and Parsi Marriage and Divorce Act, 1936.
Then there are few other State laws on Marriage Registration in Bombay, Andhra Pradesh, West Bengal but nowhere failure to register a marriage which is otherwise compulsory, affects the validity of marriage in any way. The administrative machinery for registration of marriages is not regulated everywhere by one and the same law. In different parts of the country it is regulated by one of the three central laws - the Births, Deaths and Marriages Registration Act, 1886, the Registration Act, 1908 and Registration of Births and Deaths Act, 1969 - or by a local law, or a combination of both. This creates a lot of confusion with registration officials as well as people who want to or are required to register their marriages.
5.4 Thus, 18th Law Commission stated that the wide diversity of laws relating to registration of marriages makes the process complicated and confusing. It recommended enactment of a "Marriage and Divorce Registration Act" to be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions.
5.4 The 18th Commission, in its 212th Report titled "Laws of Civil Marriages in India - A Proposal to Resolve Certain Conflicts, 2008" suggested to enact law to resolve conflicts between various family laws rather than addressing the question of marriage registration directly. The report noted that:
Numerous marriages take place in India which are outside the ambit of various personal laws but cannot be governed by the Special Marriage Act either for the reason of not having been formally solemnised or registered under it. The question which law would then apply to such marriages remains unresolved.
5.5 Thus, acknowledging this gap, the Commission recommended amendment to both the Special Marriage Act, 1954 and the Foreign Marriages Act, 1969 to make registration of marriages compulsory for the people without compromising on their religious practices and personal laws.
5.6 The 18th Commission further suggested that the term 'special' deserved reconsideration in light of the fact that cross-community marriages are now common. The Report also suggested that all marriages be required to be registered under the Special Marriage Act 1954 with the exception of those between, Hindus, Sikhs, Buddhists and Jains. The report therefore did not envision a separate legislation for Compulsory Registration of Marriages but sought to create an umbrella legislation out of the 1954 Act itself. However, this Commission is disinclined towards such an expansion of Special Marriage Act 1954 because it would entail a through revision of for instance, provisions relating to prohibited degrees of marriages, among many others, which are not questions that directly concern the Bill on registration of marriages.
5.7 The suggestions by the 21st Commission deal, only with registration of marriages and not with any substantive aspect of family law governed by various matrimonial laws - general and community - specific. Accordingly, the Births, Deaths and Marriages Registration Act, 1886 be repealed and Births and Deaths Registration Act, 1969 be re-named as "Births, Deaths and Marriages Registration Act" with a provision that officials working and records maintained under the former Act shall be deemed to be working and maintained under the latter Act.
5.8 Registration of Marriages need not lay down conditions as required under the Special Marriage Act 1954 but instead aim merely at such registration for record-keeping purposes while permitting all diverse customs and ceremonies to remain valid proofs of marriage.
5.9 The idea is not to lay down a procedure recognised for solemnisation of marriage but only for registration of marriages. Thus in effect, the Compulsory Registration of Marriages Bill aims to recommend changes along the lines of Compulsory Registration of Births and Deaths, with no effect on different Marriages Acts or personal law.