REGISTRATION OF HINDU MARRIAGE
Author: Brahamdeep Kaur
Among Hindus, the institution of marriage is considered to be the foundation of peace and order of society. Under the traditional Hindu Law, it is more religious than a secular institution. In the Shastric Hindu Law, marriage has been regarded as one of the sanskaras (sacraments).With time, the Hindu law related to marriage has crossed through Sanskars, Dharamshastras, usages, digests, commentaries, customs, equity, good conscience and has reached to the Legislation i.e., the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955 is the codified law regarding Hindu Marriages that is prevalent in the present times. It provides for the conditions for a valid Hindu Marriage as well as the ceremonies that are imperative for the marriage. Section 5 and 7 of the Act provide for the conditions of a valid marriage and ceremonies respectively.
The Hindu Marriage Act, 1955 also provides for the registration of Hindu Marriages. Registration of marriage is considered to be a mode of proof of marriage. The Hindu codified law does not have any compulsory provisions regarding registration. It, however, stipulates that a facility for registration of marriage may be provided. Section 8 of the Hindu Marriage Act, 1955 provides for the Registration of Hindu Marriages.
REGISTRATION- WHY IS IT CONSIDERED TO BE DESIRABLE?
The significance of Registration lies in the fact that a transaction that is registered is deemed to have taken place. So, Registration of Marriage is a mode of proof of marriage. Till 1955, registration of marriage was neither compulsory nor did any provisions regarding registration exist. The reason behind this was that since Hindu marriages were always performed in public with wide publicity and were entered into genealogical books, so it was not felt to be necessary to have a separate proof system for marriages. Under the Hindu Marriage Act too, it is merely an optional condition.
REGISTRATION OF HINDU MARRIAGE UNDER THE HINDU MARRIAGE ACT, 1955
Section 8 of the Hindu Marriage Act provides for the registration of a Hindu Marriage. Section 8(1) of the Act empowers the State Governments to make rules providing that the parties to a Hindu Marriage may have particulars related to their marriage that has been entered in such manner and subject to the conditions prescribed in a Hindu Marriage Register that has been kept for that purpose, to facilitate such parties, the proof of their marriage.
Section 8(2) further provides that if the State Governments feel it necessary, then, they can make rules mandating the registrations of all marriages solemnized within the State or of some specific cases and in case, someone contravenes such rules, that person shall be punishable with fine which may extend to twenty-five rupees.
Section 8(3) provides that all the rules made under this section shall be laid down before the State Legislatures as soon as they are made.
Section 8(4) further provides that the Hindu Marriage Register, so maintained, is kept to be open for inspection at all reasonable times and it can be very well admitted as evidence of the statements contained therein and further, its certified extracts can be obtained from the Registrar upon the payment of a prescribed fee.
Section 8(5) explicitly lays down that failure to register a Hindu marriage shall, in no way, affect its validity. Thus, it says that a Hindu Marriage, if solemnized with all pre-requisite conditions and performed following the necessary customary rites and ceremonies, becomes valid despite the fact it is registered or not. So, mere non-registration of marriage will not make it void. But viz a viz isnot true. Meaning thereby is, if no ceremony of marriage has taken place, mere registration has no meaning. Registration will be null and void. A certificate of registration does not validate an otherwise invalid marriage.
The registration is an optional condition and this optional position of Section 8 was actually a hinderance in recognising every marriage which was though solemnised validly but the absence of proof changed the fate of that marriage and proof can be collected through registration of marriage. By taking into cognizance such problems, the Supreme Court in the case of Seema v. Ashwani Kumar, issued the guidelines to make the registration a compulsory provision.
It is further notable that under this act, the marriage between two Hindus can only be registered. Marriage between a Hindu and a Christian cannot be registered. And where the parties cannot be present personally, they can represent themselves through a Power of Attorney and video-conferencing.
IMPORTANT CASE LAWS RELATED TO THE REGISTRATION OF HINDU MARRIAGE
1. Seema v. Ashwani Kumar
In this case, the court had found out that in a large number of cases some unscrupulous persons deny the existence of marriage taking advantage of the situation that in most of the States there is no official record of the marriage. Although most of the States have framed rules regarding the registration of marriages, but the registration of marriage is not compulsory in several States. It further pointed out that in most cases the non-registration of marriage affects women to a great measure. If marriage is registered, it also provides evidence of the marriage having taken place. Though registration itself cannot be testimony of valid marriage perse, and would not be the decisive factor regarding the validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, rights of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage. The court said that if the record of marriage is kept, to a great extent, the disagreements clashes concerning solemnization of marriage between two persons is avoided. The court further 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 and hence, would be a step in the interest of society. The court held that the registration of marriage falls within the ambit of expression “vital statistics” as provided in Entry 30, List III (the Concurrent List) of the Seventh Schedule of the Constitution of India. Therefore, the court is 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, the Supreme Court has given direction to all States and Union Territories to file a compliance report. States of Andhra Pradesh, Bihar, Chhattisgarh, Goa, Madhya Pradesh, Karnataka, Meghalaya, Mizoram, Rajasthan, Sikkim, Tamil Nadu, Tripura compiled with directions. But some States and Union Territories chose to be quiet, whereas some States filed report only concerning Hindus. The court had further granted a period of 3 months for compliance.
2. P. Ramesh Kumar v. Secretary
In this case, the petitioner had married a Japanese woman and their marriage had been solemnised under the customary rites of the Nair community to which the petitioner belonged. To go to Japan with his wife and newly born child for the purpose of employment, he had to fulfil the requirement of a Marriage Certificate. For this, he made an application to the local authority which was not considered. The petitioner approached the Court seeking a direction to the first respondent to issue a Marriage Certificate relating to his marriage under the Hindu Marriage Act, 1955 and Kerala Registration of Hindu Marriage Rules 1957. A counter affidavit was filed on behalf of the first respondent stating that the petitioner was unable to put an application for registration within the specified timeframe and moreover, the petitioner’s wife is not a Hindu, to whom alone the Hindu Marriage Act, 1955 applies so such certificate could not be issued. The court held that the petitioner’s wife is a Buddhist Japanese lady, having Japanese citizenship and was on a temporary visit to India, her husband's place. According to the Section 5,the Hindu Marriage shall be a marriage between two Hindus which thereby means that they shall be Hindus to which the Act applies. Section 1(2) of the Act explicitly makes it clear that the Act extends to the whole of India except the State of Jammu and Kashmir and also that it pertains to Hindus domiciled in the territories to which this Act extends, who are outside the said territories. Therefore, the Act will apply to a Hindu outside the territory of India, only, if he is a Hindu domiciled in the territory of India. Therefore, only those Hindus having permanent residence in India will be covered by the Hindu Marriages Act, 1955. And since the petitioner’s wife is not a domicile of India residing in Japan and therefore, is not a permanent resident of India, the Act does not apply to her. Therefore, the marriage between the petitioner and his Japanese wife is not a Hindu Marriage to be registered under Section 8 of the Hindu Marriage Act as this particular section also mentions that registration could be done only for Hindu Marriages. Hence, the petitioner was held to be ineligible for the certificate so applied for and the petition was dismissed.
3. Nishana Mol.N v. Alappuzha Municipality
In this case, a writ petition was filed by the petitioner raising the question as to whether both the parties to the marriage have to be present in person before the authority for registration of a marriage under the Kerala Registration of Marriages (Common) Rules, 2008.The marriage of the petitioner was solemnized on 8th March 2009. The couple submitted the memorandum for registration of their marriage, in Form No.1 prescribed under the Common Rules before the Local Registrar, an officer so assignedin terms of Rule 5 of the Common Rules. The petitioner said that the certificate of marriage issued by the religious authority concerned, as a document in proof of the marriage, and other relevant materials were produced along with the memorandum. The husband of the petitioner returned to a foreign country where he worked. The petitioner complained that the Local Registrar insisted on the presence of both the parties to the marriage for registration. The learned counsel for the petitioner contended that given the provisions in Rule 9 of the Common Rules, there is no obligation that both the parties to the marriage should be present before the Local Registrar. Per contra, the learned counsel for the respondents contended that the insistence on the presence of both the parties to the marriage is only to prevent possible fraud. The court held that the Common Rules do not specifically provide for the appearance of both the parties to the marriage, before the Local Registrar, to submitthe memorandum for registration of marriage or any other purpose and that the provisions clearly show that the presence of both the parties to the marriage is not necessary. However, in cases where the Local Registrar has reasonable doubt as to the identity of the persons, he may make it necessary to obtain the presence of both the parties to the marriage. Insistence on appearance cannot be the rule, but the exception. So, the court said that since in this particular matter, the respondents had as such, no doubt as to the credibility of the materials produced by the petitioner, so the petitioner's request for registration of her marriage, as placed on record through the memorandum for registration of marriage in terms of the Common Rules, ought to be acted upon without demandingon the presence of either or both of the parties, if the memorandum is otherwise in order. The writ petition was ordered as above, further directing that registration and issuance of the certificate in the light of what is stated above be done within one month from the date of receiving of a copy of this judgment.
The institution of marriage is considered to be the peace and order in society. But the same institution sometimes poses to be problematic as well. In some cases, some fraudulent people deny the fact that they are married thereby making themselves escape from the duties like maintenance etc. Although the Hindu Marriages are performed publicly as huge processions with a lot of pomp and show still the lack of any documentary proof as a piece of evidence to such marriage becomes a loophole and people tend to take advantage out of it. Registration of marriage is considered as a mode of proof of marriages. The Hindu law related to marriage, as such, had no provisions regarding registration and the codified law also does not have any compulsory provisions regarding the same.
It, however, stipulates that a facility for registration of marriage may be provided. Under the Hindu Marriage Act too, it is merely an optional condition. This optional condition sometimes poses to be a problem as in cases where the marriage has not been registered, people tend to take advantage of the loophole, thereby, denying the existence of marriage. The Court has although directed the State governments in the case of Seema v. Ashwani Kumar, to make the registration of marriages a mandatory procedure. But it has been followed only by some selective States. The other States have either chosen to be quiet over the matter or have made rules related to Hindus only. Registration is an important step for the betterment of society as it avoids instances like child marriage, fraud, bigamy etc. So, it is the need of the hour that registration should be made compulsory and besides making it compulsory, the legislature should also make efforts to make the process of registration a less cumbersome one. This will ensure proper record keeping of the marriages thereby leading to avoiding child marriage, fraud, bigamy etc.