Report No. 270
Chapter - VI
Need for a Central Legislation to regulate compulsory Registration of Marriages
6.1 In view of the developments that have taken place in the States and Union territories with respect to legislations on Compulsory Marriage Registration, the core question for consideration arises is as to whether there is a need for Central Legislation on the subject? And if so, then the next question arises as to whether to pursue amendments in the Registration of Births and Deaths Act, 1969 as per the Registration of Births and Deaths (Amendment) Bill, 2015 or to consider a separate standalone legislation to provide for compulsory registration of marriages is required? 6.2 Before providing directions for the registration of marriages in Seema v. Ashwani Kumar 26 the Supreme Court noted that, such a law would be of critical importance to various issues such as:
(a) Prevention of child marriages and to ensure minimum age of marriage.
(b) Prevention of marriages without the consent of the parties.
(c) Check bigamy/polygamy
(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.
(e) Enabling widows to claim their inheritance rights, other benefits and privileges which they are entitled to after the death of their husband.
(f) Deterring men from deserting women after marriage.
(g) Deterring parents/guardians from indulging in trafficking of women to any person including a foreigner, under the garb of marriage.
6.3 Further, the Supreme Court observed that though, 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 registration of marriages is made compulsorily. Accordingly directions were issued for States/ Union territories and Central Government. The relevant part of the Order dated 14.02.2006 reads as under:
"(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny."
6.4 Prior to the above directions of the Supreme Court on the subject, there have been suggestions/ demand to make registration of marriages and divorces compulsory in an official registry at international and national levels, i.e., United Nations Organisations27; National Human Rights Commission28; the Steering Committee on Empowerment of Women and Development of Children29; Committee on Empowerment of Women30; National Commission for Women31 Law Commission of India; Parliament Standing Committee; States and Union territories.
Further, after solemnisation of marriages or after divorce many Statues provide rights, liabilities and obligations for parties (male and female) and children. Various kinds of rights and disputes that arise out of marriages/divorces are -restitution of conjugal rights, offences relating to marriage, legitimacy of children, dispute relating to custody of children; dispute relating to stridhan or dowry, dispute relating to cruelty and harassments; succession of properties, visit to foreign countries, dispute relating to divorce or separation; dispute relating to maintenance, period for remarriage etc.
On such issues a large number of disputes including that of NRIs are being adjudicated in various tribunals/ courts. Non-registration of marriage affects women and children. Women are the prominent victims of bigamous relationships and property disputes etc. face immense difficulty in establishing their marriage. Therefore, it has become necessary to enact a law to safeguard the future of married/divorcees and to check child marriages/ trafficking of young girls to any person including foreigner under the garb of marriage.
6.5 The Registration of Births and Death Acts, 1969, provides for Registration establishments consisting of Registrar-General, Chief Registrar and Registration Division and Registrars in each State and Union territory. It also provides procedures for registration of births and deaths and for maintenance of records and statistics. Further, by virtue of the powers conferred under section 30 of the aforesaid Act, rules for compulsory registration of births and deaths have been framed by many State Governments and Union territory Administration. In the Statement of Object and Reasons of the Act, the need of adequate and accurate countrywide registration data for the purpose of national planning, organising public health and medical activities and developing family planning programmes etc. has been noted. It was felt that in order to develop a sound and unified system of registration in the country, a central legislation on the subject necessary.
6.6 Therefore, it is worth considering the amendment of the aforesaid Act to include Registration of marriage as well within its scope so that existing administrative machinery is able to carry out registration of marriages in accordance with the specified procedures. Further, the States at one office/ place will be able to maintain necessary records and statistics of registration of marriages. This will make the proposal financially viable because it will not be causing any extra financial burden in establishing separate infrastructure to implement the proposal.
6.7 The ultimate object is to provide a mechanism for 'compulsory registration of marriages' which is being proposed for all citizens of India irrespective of the religion or caste of the parties, manner, time or place of solemnisation of the marriage or custom/ enactment under which marriage is solemnised or personal laws of the parties. The Registration of Births and Deaths Act, 1969 is dealing with only the registration of births and deaths. Therefore, it is not desirable to have a separate legislation for compulsory registration of marriages as it may not serve any useful purpose. This Bill will also be a step forward in making visible the forms of customs and practices under which the marriages are solemnized.
6.8 The current legislative system often leaves unanswered gaps where in the absence of pronounced court orders several cases seem to fall astray. In the Court on its own motion (Lajja Devi) v. State (NCT of Delhi),32 a full bench of Delhi High Court identified the conflicting legislations that still do not pronounce clearly what is the legal minimum age to marry in India. Section 5(iii) of the Hindu Marriage Act, 1955 and section 2(a) of the Prohibition of Child Marriage Act, 2006 prescribes 18 as the minimum age for the bride and 21 as the minimum age for the groom. Muslim Law in India recognizes marriage of minor who has attained puberty as valid.
The Special Marriage Act also prescribes 18 and 21 as the legal minimum age for women and men respectively. However, under section 11 and 12 of the Hindu Marriage Act, marriages where one or more parties do not meet the legal minimum age requirement are neither void nor voidable and merely liable to pay fine. Section 3 of the Prohibition of Child Marriage Act deems a marriage where one or more parties is minor as voidable at the option of the minor. There is also a question of guardianship, where the laws are unclear on the point as to whether the husband can be a guardian of the wife, according to Section 6 of the Hindu Minority and Guardianship Act, 1956, when he himself has not yet attained the age of majority.
6.9 The question then arises that when it comes to compulsory registration of marriage should the law encourage this tacit compliance of child marriage by allowing these "valid marriages" under various personal laws to get registered, or should the law not register these marriages, where turning a blind eye and not compulsorily registering the marriage would actually let the activity continue unregulated. This was highlighted in Lajja Devi:33
"registration of marriages has still not been made compulsory. Compulsory registration mandates that the age of the girl and the boy getting married have to be mentioned. If implemented properly, it would discourage parents from marrying off their minor children since a written document of their ages would prove the illegality of such marriages. This would probably be able to tackle the sensitive issue of minor marriages upheld by personal laws."