Report No. 211

B. Recommendations

Under the Constitution of India family matters are in the concurrent jurisdiction of the Centre and States [List III, Entry 5]. Parliamentary legislation on compulsory registration of marriages is therefore not only possible but also highly desirable. This will bring country-wide uniformity in the substantive law relating to marriage registration and will be helpful in effectively achieving the desired goal. Rules under the proposed Act may of course be made by the State Governments, and this will take care of the local social variations.

We therefore recommend enactment of a central law on the subject. We further recommend consequential changes in all the relevant central and local laws.

Our detailed recommendations are as follows:

(i) A "Marriage and Divorce Registration Act" [hereinafter referred to as the "proposed law"] should be enacted by Parliament, to be made applicable in the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions.

(ii) The proposed law should deal only with registration of marriages and divorces and must not touch any substantive aspect now governed by various matrimonial laws - general and communityspecific.

(iii) A proper and common machinery for registration of marriages and divorces, including registration offices at the district/sub-district levels should be provided for under the proposed law. The State Governments may set up such offices, appoint Marriage and Divorce Registration Officers by name or ex officio at various levels, and prescribe rules to regulate their working.

(iv) Since in all communities marriages are solemnized with a religious ceremony, the religious officials solemnizing the marriages can play a major role in respect of registration of marriage. The proposed law should make it mandatory for the "officiating priest" of every marriage to prepare and maintain proper records of all marriages in a prescribed form. The term "officiating priest" should for this purpose include the following:

(a) pundits, purohits and other Hindu religious officials by whatever name called who officiate at a marriage;

(b) kazis and all other Muslim religious officials by whatever name called who solemnize a nikah;

(c) Christian pastors and other Church officials who solemnize a Christian marriage;

(d) Parsi, Jewish and Bahai religious leaders who officiate at any marriage among these communities;

(e) clerics of all other religions performing this function; and

(f) any other person, whether religious official or not, who performs religious or customary rites at any marriage.

(v) It should be made mandatory for every "officiating priest"(as defined above) to transmit copies of all their records at regular intervals to the local Marriage and Divorce Registration Officer.

(vi) While transmitting his records to the Marriage and Divorce Registration Officer, the officiating priest should also send a certificate that every marriage included in the record was to the best of his knowledge and belief in accordance with the requirement of the marriage law applicable to parties.

(vii) The proposed law should amend the following Acts to insert in them the requirements stated above at paras (v) and (vi) above:

(a) Indian Christian Marriage Act 1872;

(b) kazis Act 1880;

(c) Parsi Marriage and Divorce Act 1936; and

(d) Hindu Marriage Act 1955.

(viii) The kazis Act 1880 should be further amended to make it applicable both to private kazis and to every person who performs the nikah ceremony at any Muslim marriage.

(ix) The Special Marriage Act 1954 should be amended to provide that Marriage Officers working under its provisions shall transmit their records at prescribed intervals to the Marriage and Divorce Registration Officer of the concerned district.

(x) The Foreign Marriage Act 1969 should be amended to provide that Indian Diplomatic Missions in all countries shall send at prescribed intervals their records to the Ministry of Foreign Affairs in Delhi for onward transmission to the State Registry of the State concerned.

(xi) The kazis Act 1880 should be further amended to provide that every divorce among the Muslims, in whatever form it takes place, must be communicated in writing to the kazi of the area within a prescribed time. The kazis should be required to maintain proper records of all such divorces and periodically transmit their records of divorces to the Marriage and Divorce Registration Officer of the area along with marriage records.

(xii) Section 29 of the Hindu Marriage Act 1955 should be amended to provide that all customary divorces among the Hindus, Buddhists, Jains and Sikhs should be duly registered with the Marriage and Divorce Registration Officers working under the proposed law.

(xiii) The following Acts should be amended, on the pattern of the provision to this effect found in the Parsi Marriage and Divorce Act 1936, to require the registries of courts granting decrees of divorce or nullity of marriage to periodically send information about the same in a prescribed form to the local Marriage Registration Office:

(a) Indian Christian Marriage Act 1872;

(b) Parsi Marriage and Divorce Act 1936;

(c) Special Marriage Act 1954; and

(d) Hindu Marriage Act 1955.

(xiv) The proposed law should declare failure to register a marriage or divorce as required by its provisions to be an offence punishable with heavy fines and, in default of payment of fine, with imprisonment for a prescribed period.

(xv) The proposed law should also provide that no judicial relief will be granted in a disputed matter if the concerned marriage or divorce is not duly registered under its provisions.

(xvi) The proposed law should be given an overriding effect on all other laws through a non obstante clause duly inserted in it.

(xvii) The following laws should be repealed with necessary saving provisions:

(a) Births, Deaths and Marriages Registration Act 1886;

(b) All State laws dealing with registration of marriages in general;

(c) Muslim Marriage and Divorce Registration Acts(by whatever name called) in force in West Bengal, Bihar, Jharkhand, Orissa, Assam and Meghalaya; and

(d) Any provision relating to registration of marriages in any preexisting law which comes in conflict with the provisions of the proposed law (to the extent of such conflict).