Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the civil status, condition, or relation of one man and one woman united in law for life. The community of the duties is legally incumbent on those whose association is founded on the distinction of sex. However, a layman understands this as a union of a man and a woman for life wherein they shall cohabit.
The laws relating to marriage are codified in India. However, the laws relating to the registration of marriages in India are uncodified, and it is the discretion of the state to enforce such legislation that makes it compulsory to register all the marriages within its jurisdiction.
The Hindu Marriage Act, 1955, is the primary law that governs the provisions of marriages of Hindus, and the said legislation also provides the provision of registration of marriages under Section 8. However, it says that the state government must enact laws relating to the registration of marriages.
The Special Marriage Act, 1954, under Chapter III (Sections 15, 16, 17, and 18), contains the compulsory registration of marriages solemnised under this Act. It places an obligation on the parties to a marriage to satisfy the conditions required under Section 4 and register their marriage.
Aspects of Registration of Marriages in India
According to the National Commission for Women Draft on the Compulsory Registration of Marriages Bill, 2005, the reasons behind the registration of marriages are to prevent child marriages and maintain the required age for marriage, i.e., 21 and 18 years. Further, to eliminate having more than one spouse unless permitted by personal religious laws, to provide the ex-wife with the acknowledgement of new marriage, to provide the right to residence and maintenance by foreign/NRI husband, to prevent the menace of desertion of marriage and to prevent the trade of daughter to a foreigner under the guise of marriage.
The registration of marriages is open for inspection, and the same acts as evidence in the eyes of the law. However, a certificate gained after the marriage registration is not proof of the validity of the registered marriage if the marriage is otherwise void. However, the same may act as proof of paternity for those born during such marriage.
The registration of marriages under the Hindu Marriage Act, 1955 merely maintains a marriage record and acts as proof. In cases when parties fail to register their marriages under the said legislation, it will only attract a penalty or fine.
Special Marriage Act, 1954
The question of registration of marriage under the Special Marriage Act, 1954 through video-conferencing was considered in State of Haryana v. Ami Ranjan and Others, to which the Supreme Court of India answered positively. In the said case, the wife resided in a foreign country after the marriage, and the husband moved an application to allow the wife to appear in the marriage proceedings through video-conferencing.
The Kerala High Court, regarding the registration of marriages through video-conferring, also ruled that in the age of technology, marriages under the Special Marriage Act, 1954 can also be conducted without asking the parties to appear physically. However, the marriage officer must identify the parties to the marriage, while the Delhi High Court has also directed the Government of Delhi to update the software to meet the registration requirements of marriages through video conferencing.
Legal Aspects of Registration of Marriages in India
The laws relating to compulsory registration of marriages are a subject matter of state policy, and states have their legislation regarding the compulsory registration of marriages.
In P. Remesh Kumar v Secy, Kannapuram Grama Panchayat, the Kerala High Court ruled according to the Kerala Hindu Marriage Registration Rules, 1957. As soon as possible and not after 15 days of the marriage, the husband must compulsorily register or provide a marriage report to the local marriage registrar under whose jurisdiction such marriage took place.
In Seema v. Ashwini Kumar, the Supreme Court of India, after considering the opinions of the National Commission, thought that the registration of marriages indeed acts as a protector of the rights of women in a marriage. The Apex court in this case also considered all the state legislation regarding the registration of marriage and observed that only the states like Maharashtra, Gujarat, Karnataka, Himachal Pradesh, and Andhra Pradesh had compulsory registration of marriages. The Apex Court also gave specific directions regarding the registration of marriages in India to all the States and Union Territories:
The States must notify their procedure of registration of marriages of their respective states, and the same can either be done by amending the existing laws or by enacting new legislation.
The officers appointed to register marriages in the States should be authorised to register a marriage, and factors like age, marital status (unmarried, divorcee) must also be stated. There must also be provisions of false presentation of documents and non-registration of marriages under the said rules.
Whenever the Government of India enacts any legislation regarding the registration of marriages in India, the same legislation must also be provided to the Apex Court for scrutiny.
The representatives of different states in the court must ensure that the directions passed by the Apex Court are carried out with immediate effect.
The Delhi High Court in Court on its own Motion (Lajja Devi) v. State, observed that if a marriage with a female of fewer than 18 years or a male of fewer than 21 years, will not be a void marriage but a voidable marriage and the same would become valid if no steps are taken by such “child”, which has the meaning as of Section 2(a) of the Prohibition of Child Marriage Act, 2006, who is seeking a declaration of this marriage as void. The court further observed that offences under the said Act are cognisable and non-bailable; however, the same does not affect the validity of the child marriage.
The compulsory registration of marriage ensures that no child marriage takes place, and if it does take place, the effects of the same were discussed by the Delhi High Court in the case of Association for Social Justice & Research v Union of India & Others, where the court observed that child marriage leads to:
Health risks for young girls due to early sexual initiation and pregnancy, including HIV
Adequacy of status, maturity and young girls are often a victim of domestic and sexual abuse.
Early marriage often leads to deprivation of education or work for young girls, leading to poverty.
Child marriage also results in gender inequality, sickness, and poverty.
Child marriage leads to deprivation of health and leads to high rates of maternal and child death.
In Kanagavalli & 4 Others v Saroja & 3 Others, the Madras High Court, after considering the importance of registration of marriages, observed that non-registration of marriages in India is an injustice caused to the women. The woman is a victim in cases where the husband denies her marriage. Further, the registration of marriage will also protect the interests of the child born of such marriage.
The Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021
Recently Rajasthan has passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021, which will amend the Rajasthan Compulsory Registration of Marriages Act, 2009.
The bill caused the opposition to walk out of the assembly and protest. It has a provision that legalises child marriages in the state by compulsory registration of child marriage within 30 days after the commencement of the marriage.
The primary reason the said bill was not passed is that it de facto legalises child marriage, as under Section 8 of the bill, in the case where the bride and bridegroom have not attained the required age for marriage, the parents of such parties to a marriage must register the marriage in the marriage registrar office under whose jurisdiction such marriage has taken place.
The bill also preserves the provision that if there is the death of any or both the parties to a marriage, then the surviving party or the parents or the adult child can file a memorandum for marriage registration.
The laws relating to the registration of marriages in India are not codified and remain a subject matter of state policy, and therefore uniform law relating to the compulsory registration of marriages must be enacted by the parliament.
At a conference, the National Human Rights Commission also recommended that all marriages under the age of 16 must be held void instead of voidable, and there must be a time limit regarding the revocation of child marriage. NHRC further recommended that NGOs who work to eliminate child marriages must be considered next friends.
In its Report no. 270, the Law Commission of India believed there should be compulsory registration of marriages. It recommended amendments to the Registration of Births and Deaths Act, 1969, which shall be within its scope also include the compulsory registration of marriages and the mechanism to register.
In its Report no. 211, the Law Commission of India also recommended that there must be a separate marriage and divorce registration Act in India, which shall apply to the whole of India irrespective of religious or personal laws. The said law must only deal with marriage and divorce registration and should not be concerned with any other aspect. A piece of 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. It must declare a failure to register a marriage or divorce as required by its provisions to be an offence punishable with heavy fines.
The registration of marriages in India is undoubtedly a significant aspect of the law that is not often considered. The compulsory registration of marriages in India has numerous perks, including eliminating child marriages and violence against women in marriage and protecting the interests of women in the country. However, there is no uniform law, and each state has its laws, which leads to uncertainty in legislation.
A uniform law regarding the registration of marriage in India is the need of the hour because the current laws in India associated with the registration of marriages have failed to achieve their purpose. Therefore, the parliament of India must codify the laws relating to the registration of marriages in India.