The legality of marriages performed and registered by Kazis appointed by private associations is determined by the interpretation of the provisions of the Kazis Act, 1880 and the Assam Moslem Marriages and Divorces Registration Act, 1935.

N. C. JAIN, Actg. C. J. :- In this writ appeal filed against the judgment of the learned Single Judge, we hardly see any dispute between the counsel for the parties.

2. In order to understand the nature of the dispute, it is necessary to have a brief look on the factual position which has led to the filing of the writ petition and its dismissal by the learned Single Judge.

3. The writ petition was filed by the appellant, All Assam Muslim Marriage and Divorce Registrar and Kazi Association with the prayer that the activities of the Kazis apponited by the North East India Emarat-e-Shariah and Nadwatut-Tameer relating to registration of marriages and issuing certificates of marriages be declared to be illegal.

4. The organisation named above which filed the writ petition is a voluntary organisation which appoints some persons as Kazis to register and maintain the record of marriages amongst Muslims. This having been objected to, the matter received the attention of the State Government culminating into issuance of two notifications by the Government of Assam, which are attached with the writ petition as Annexures-13 and 14, and which have been so reproduced by the learned Single Judge in his judgment in the writ petition. Without dilating upon the matter in minute details, we can straightaway refer to the provisions of the Kazis Act, 1880 (hereinafter referred to as the Kazis Act) and the provisions of the Assam Moslem Marriages and Divorces Registration Act, 1935 (hereinafter referred to as the 1935 Assam Act). In both the enactments only some provisions are necessary, which need the attention of the Court. In Kazis Act, S. 4 needs interpretation, which is reproduced below :-

"Nothing in Act to confer judicial or administrative powers; or to render the presence of Kazi necessary; or to prevent any one acting as Kazi. -

Nothing herein contained, and no appointment made hereunder, shall be deemed -

(a) to confer any judicial or administrative powers on any Kazi or Naib Kazi appointed hereunder; or

(b) to render the presence of a Kazi or Naib Kazi necessary at the celebration of any marriage or the performance of any rite or cermony; or

(c) to prevent any person discharging any of the functions of a Kazi."

5. The provisions of the aforementioned section makes it clear that no appointment made under the Kazis Act shall be deemed to confer any judicial or administrative powers on any Kazi appointed under the Kazis Act. Section 4(b) further envisages that the presence of the Kazi is not necessary at the time of celebration of any marriage or performance of any rite or cermony. Sub-clause (c) of S. 4 further lays down that nothing contained in the Kazis act shall prevent any person from discharging the functions of Kazi. In nutshell, marriage can be performed by any Kazi, even if he is not appointed under the Kazis Act.

6. Adverting to the provisions of the Assam Act, 1935, S. 24 deserves pointed attention of the Court, which is reproduced below :-

"24. Saving clause. Nothing in this Act contained shall be construed to -

(a) render invalid merely by reason of its not having been registered any Moslem marriage or divorce which could otherwise be valid;

(b) render valid, by reason of its having been registered, any Moslem marriage or divorce which would otherwise be invalid,

(c) authorise the attendance of any Moslem Registrar at the celeberation or dissolution of a marriage or divorce except at the request of all the parties concerned;

(d) affect the religion or religious rites and usages of any citizen of India;

(e) prevent any person, who is unable to write, from putting his mark, instead of the signature required by this Act."

7. A combined reading of sub-clauses (a) to (e) of S. 24 makes it clear that nothing in the Act would be construed to mean that any marriage would be invalid merely because it has not been registered. It further lays down that the factum of registration of the marriage would not make the same a valid marriage.

8. The af