Back
2006(2) Supreme 66
Supreme Court of India
(Under Section 25 of the Code of Civil Procedure)
Arijit Pasayat and S.H. Kapadia, JJ.
Smt. Seema —Appellant
versus
Ashwani Kumar —Respondent
Transfer Petition (C) No. 291 of 2005
Decided on 14-2-2006
Counsel for the Parties :
For the Appearing Parties : G.E. Vahanvati, S.G., Ranjit Kumar, Sr. Advocate, Balraj Dewan, Mukesh Sharma, Manish Shankar, Pankaj K. Singh, Yash Pal Dhingra, S.W.A. Qadri, Aruneshwar Gupta, Rajeev Kumar Dubey, V.G. Pragasam, Mrs. Anil Katiyar, Gopal Singh, Rituraj Biswas, Tara Chand Sharma, Ms. Neelam Sharma, K.R. Sasiprabhu, Balraj B., J.S. Attri, Ms. Shivani Thakur, Mrs. D. Bharathi Reddy, Nikhal Shakad Danda, Mrs. Nandini Gore, Gopal Prasad, Ajay Sharma, Rajeev Sharma, Ms. Kamini Jaiswal, Ms. Sunita Diwedi, Ms. Shamita Bakshi, Ms. Rani, Ranjan Mukherjee, Manjeet Singh, Mrs. Vivekta Singh, Harikesh Singh, T.V. George, Sanjay R. Hegde, Anil K. Mishra, A. Rohen Singh, Ravi P. Mehrotra, Garvesh Kabra, Ms. Suparna Srivastava, Ms. Deepti Singh, Rajesh Srivastava, Ms. Sunita Sharma, D.S. Mahara and K.H. Nobin Singh, Advocates.
Held : As noted supra, except four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh registration of marriages is not compulsory in any of the other States. As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. 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 marriages are made compulsorily registrable. The legislative intent in enacting Section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”. As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered. Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized. Accordingly, we direct the States and the Central Government to take the following steps :
(i) 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.
(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules. Needless to add that the object of the said Rules shall be to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately. (Paras 14 to 18)
Judgment
Arijit Pasayat, J.—The origin of marriage amongst Aryans in India, as noted in Mayne’s Hindu Law and Usage, as amongst other ancient peoples is a matter for the Science of anthropology. From the very commencement of the Rigvedic age, marriage was a well-established institution, and the Aryans ideal of marriage was very high.
2. The Convention on the Elimination of All Forms of Discrimination Against Women (in short ‘CEDAW’) was adopted in 1979 by the United Nations General Assembly. India was a signatory to the Convention on 30th July, 1980 and ratified on 9th July, 1993 with two Declaratory Statements and one Reservation. Article 16(2) of the Convention says “though India agreed on principle that compulsory registration of marriages is highly desirable, it was said as follows :
“It is not practical in a vast country like India with its variety of customs, religions and level of literacy’ and has expressed reservation to this very clause to make registration of marriage compulsory”.
3. While a transfer petition was being heard it was noted with concern that in large number of cases some unscrupulous persons are denying the existence of marriage taking advantage of the situation that in most of the States there is no official record to the marriage. Notice was issued to various States and Union Territories and learned Solicitor General and Mr. Ranjit Kumar, learned senior counsel were requested to act as Amicus Curiae to assist the Court in laying down guidelines in the matter of registration of marriages. Without exception, all the States and the Union Territories indicated their stand to the effect that registration of marriages is highly desirable.
4. It has been pointed out that compulsory registration of marriages would be a step in the right direction for the prevention of child marriages still prevalent in many parts of the country. In the Constitution of India, 1950 (in short the ‘Constitution’) List III (the Concurrent List) of the Seventh Schedule provides in Entries 5 and 30 as follows :
“5. 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.
30. Vital statistics including registration of births and deaths.”
5. It is to be noted that vital statistics including registration of deaths and births is covered by Entry 30. The registration of marriages would come within the ambit of the expression ‘vital statistics’.
6. 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 marriages. They are: (1) The Bombay Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat), (2) The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976, (3) The Himachal Pradesh Registration of Marriages Act, 1996, and (4) 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. Under 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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
