Seema v. Ashwani Kumar

While hearing a transfer petition, the Supreme Court saw that people were denying their marriages because most States kept no official record. It asked all States and Union Territories for their views. It then directed that marriages of all citizens, of every religion, be compulsorily registered.

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Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Smt. Seema — petitioner in Transfer Petition (Civil) No. 291 of 2005.

Ashwani Kumar — respondent in the transfer petition.

Solicitor General (Mr. G.E. Vahanvati) and Mr. Ranjit Kumar, senior counsel — appointed as amicus curiae (a lawyer appointed to assist the Court) to help lay down guidelines on registration of marriages.

States, Union Territories and the Central Government — on notice. They filed statements and affidavits on the law and practice of marriage registration.

National Commission for Women — filed an affidavit supporting compulsory registration of marriages.

Procedural History

1. The matter was a transfer petition, Transfer Petition (Civil) 291 of 2005, before the Supreme Court.
2. While hearing it, the Court noted with concern that unscrupulous persons were denying the existence of marriage. Most States had no official record of marriages.
3. The Court issued notice to the States and Union Territories.
4. The Court asked the Solicitor General and Mr. Ranjit Kumar to act as amicus curiae and help it lay down guidelines.
5. Every State and Union Territory said that registration of marriages is highly desirable.
6. Judgment was delivered on 14 February 2006 by Pasayat, J.

Facts

1. The judgment does not set out the personal facts of Seema and Ashwani Kumar. It records only that the matter was a transfer petition.
2. The Court noted that a large number of persons were denying the existence of a marriage. They took advantage of the fact that most States kept no official record of marriages.
3. Notice went to the States and Union Territories. The Solicitor General and Mr. Ranjit Kumar were asked to act as amicus curiae.
4. All States and Union Territories, without exception, said registration of marriages is highly desirable.
5. It was pointed out that compulsory registration would help prevent child marriages, which were still common in many parts of the country.
6. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted in 1979 by the UN General Assembly. India signed it on 30 July 1980 and ratified it on 9 July 1993 with two Declaratory Statements and one Reservation.
7. Under Article 16(2) of the Convention, India agreed in principle that compulsory registration of marriages is highly desirable. It said this was not practical in a vast country with many customs, religions and levels of literacy. It reserved its position on making registration compulsory.
8. The Court recorded the state of the law on registration of marriages, as compiled from the affidavits (see Court's Reasoning).
9. The National Commission for Women said in its affidavit that it had supported compulsory registration since its start.

Issues Raised

The judgment does not frame issues as numbered questions. The questions the Court dealt with were these:

1. Should registration of marriages be made compulsory, given that most States do not require it?
2. If so, what steps must the States and the Central Government take?

Arguments Contended

The reported judgment does not set out arguments by Seema or Ashwani Kumar. It records the following stands.

For registration (States and Union Territories):

• All States and Union Territories said registration of marriages is highly desirable.
• It was pointed out that compulsory registration would be a step in the right direction to prevent child marriages.

National Commission for Women (affidavit):

• Non-registration of marriages affects women the most. The Commission has supported legislation on compulsory registration since its start.
• Such a law would matter for these women-related issues:
  1. Preventing child marriages and ensuring the minimum age of marriage.
  2. Preventing marriages without the consent of the parties.
  3. Checking illegal bigamy (marrying again while a marriage subsists) and polygamy.
  4. Enabling married women to claim their right to live in the matrimonial house, maintenance and similar rights.
  5. Enabling widows to claim inheritance rights and other benefits after the husband's death.
  6. Deterring men from deserting women after marriage.
  7. Deterring parents or guardians from selling daughters or young girls, including to a foreigner, under the pretence of marriage.

India's stand under CEDAW:

• Article 16(2) of CEDAW says compulsory registration is highly desirable. India said it was "not practical in a vast country like India with its variety of customs, religions and level of literacy". It reserved its position on this clause.

State of Goa (affidavit):

• The Hindu Marriage Act is not in force in Goa. It was not extended by the Goa, Daman and Diu Laws Regulations, 1962 or the Goa, Daman and Diu Laws No. 2 Regulations, 1963.

No opposition to compulsory registration by any State or Union Territory is recorded.

Court's Reasoning

Opinion of Pasayat, J. The judgment has no numbered paragraphs, so no paragraph numbers are cited.

1. Noted: The origin of marriage among Aryans in India is a matter for anthropology. Mayne's Hindu Law and Usage records that marriage was a well-established institution from the start of the Rigvedic age. The Aryan ideal of marriage was very high.
2. Noted: CEDAW was adopted in 1979, and India signed and ratified it (dates in the Facts). India agreed in principle that compulsory registration is highly desirable, but said it was not practical. It expressed a reservation to this clause.
3. Noted: While the transfer petition was heard, the Court saw that unscrupulous persons deny their marriages because there is no official record. Notice went to States and Union Territories, and amicus curiae were requested. All States and Union Territories said registration is highly desirable.
4. Noted: Compulsory registration would help prevent child marriages, which are still common in many parts of the country.
5. Noted: List III (Concurrent List) of the Seventh Schedule has Entry 5 and Entry 30.
   • Entry 5 covers marriage and divorce, infants and minors, and adoption.
   • It also covers wills, intestacy and succession, and joint family and partition (division of joint family property).
   • It also covers all matters in which parties in judicial proceedings were, before the Constitution began, subject to their personal law.
   • Entry 30: "Vital statistics including registration of births and deaths".
6. Held: Registration of marriages comes within the expression vital statistics.
7. Noted: Four Statutes provide for compulsory registration of marriages.
   • The Bombay Registration of Marriages Act, 1953 (Maharashtra and Gujarat).
   • The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976.
   • The Himachal Pradesh Registration of Marriages Act, 1996.
   • The Andhra Pradesh Compulsory Registration of Marriages Act, 2002.
8. Noted: Five States (Assam, Bihar, West Bengal, Orissa and Meghalaya) have made provision for voluntary registration of Muslim marriages. The relevant statutes are the Assam Moslem Marriages and Divorce Registration Act, 1935, and the Orissa Muhammadan Marriages and Divorce Registration Act, 1949. The third is the Bengal Muhammadan Marriages and Divorce Registration Act, 1876.
9. Noted: Uttar Pradesh has announced a policy of compulsory registration of marriages by the Panchayats, with records of births and deaths also kept.
10. Noted: Other central laws on registration:
    • Special Marriage Act, 1954: applies to Indian citizens of any religion. Each marriage is registered by a specially appointed Marriage Officer.
    • Indian Christian Marriage Act, 1872: registration is compulsory. Entries are made in the church marriage register soon after the ceremony, with the signatures of the bride, bridegroom, priest and witnesses.
    • Parsi Marriage and Divorce Act, 1936: registration is compulsory.
    • Foreign Marriage Act, 1969: also provides for registration of marriages.
11. Noted: Section 8 of the Hindu Marriage Act, 1955 has provisions for registration. The parties may either marry before the Sub-Registrar or register after the ceremony. Failure to make the entry in the register does not affect the validity of the marriage.
12. Noted: Under Section 8(2), the State Government may make registration compulsory. A person who breaks a rule made on this is punishable with fine. The Act lets State Governments make rules on registration.
13. Noted: Goa follows the Law of Marriages in force since 26 November 1911 in Goa, Daman and Diu.
    • Under Articles 45 to 47, registration is compulsory. Marriage is ordinarily proved by the certificate from the Civil Registrar.
    • Procedure is in Articles 1075 to 1081 of the Portuguese (Civil) Code and the Code of Civil Registration (Portuguese).
    • Goa's affidavit says the Hindu Marriage Act is not in force there.
14. Noted: State-wise position from the affidavits:
    • Jammu and Kashmir: the Hindu Marriage Act, 1980 lets the Government make rules for entering marriage particulars. No rules were framed. The Muslim Marriages Registration Act, 1981 requires registration within 30 days of the Nikah, but it has not been enforced. The Christian Marriage and Divorce Act, 1957 provides for registration under Sections 26 and 37.
    • Uttar Pradesh: U.P. Hindu Marriage Registration Rules, 1973, framed under Section 8. Marriages are being registered under them.
    • Pondicherry: Hindu Marriage (Registration) Rules, 1969, in force from 7 April 1969. Sub-Registrars are appointed under Section 6 of the Registration Act, 1908 as Marriage Registrars.
    • Haryana: Hindu Marriage Registration Rules, 2001.
    • West Bengal: Hindu Marriage Registration Rules, 1958.
    • Tripura: Hindu Marriage Registration Rules, 1957, and Special Marriage Rules, 1989 under the Special Marriage Act.
    • Karnataka: Registration of Hindu Marriages (Karnataka) Rules, 1966, and the 1976 Act. Section 3 of the Act requires compulsory registration of all marriages in the State.
    • Chandigarh: Hindu Marriage Registration Rules, 1966.
15. Noted: The National Commission for Women said non-registration affects women the most. It listed seven issues for which compulsory registration matters (see Arguments).
16. Held: The Court agreed with the National Commission. In most cases, non-registration of marriages affects women to a great extent.
17. Noted: Except for the four statutes, applicable in Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh, registration is not compulsory in any other State.
18. Noted: Most States have framed rules, but registration is not compulsory in several. If a record of marriage is kept, disputes about solemnization are largely avoided.
19. Held: Registration also gives evidence that the marriage took place. It gives a rebuttable presumption that the marriage took place.
20. Held: Registration by itself is not proof of a valid marriage. It is not the determinative factor on validity. Yet it has "a great evidentiary value" in matters of custody of children, the rights of children born of the marriage and the age of the parties.
21. Held: It would be in the interest of society to make marriages compulsorily registrable.
22. Noted: Section 8 of the Hindu Marriage Act was enacted "for the purpose of facilitating the proof of Hindu Marriages". A person whose marriage is not registered is denied the presumption that registration gives.
23. Held: Marriages of all citizens of India, of all religions, "should be made compulsorily registrable in their respective States, where the marriage is solemnized".

Authorities

The judgment cites no decided case. It relies on the following texts and provisions:

• Mayne's Hindu Law and Usage: origin of marriage among Aryans and its ideal in the Rigvedic age (opening passage).
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979, Article 16(2): India's reservation on compulsory registration (opening passage).
• Constitution of India, Seventh Schedule, List III, Entries 5 and 30: Entry 30 covers registration of marriages as vital statistics.
• Hindu Marriage Act, 1955, Section 8 (registration), including Section 8(2): State Governments may make registration compulsory.
• Special Marriage Act, 1954; Indian Christian Marriage Act, 1872; Parsi Marriage and Divorce Act, 1936; Foreign Marriage Act, 1969: registration provisions noted.
• The four compulsory statutes:
  • Bombay Registration of Marriages Act, 1953.
  • Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976.
  • Himachal Pradesh Registration of Marriages Act, 1996.
  • Andhra Pradesh Compulsory Registration of Marriages Act, 2002.
• Assam Moslem Marriages and Divorce Registration Act, 1935; Orissa Muhammadan Marriages and Divorce Registration Act, 1949; Bengal Muhammadan Marriages and Divorce Registration Act, 1876: voluntary registration of Muslim marriages.
• Goa laws:
  • Law of Marriages in force in Goa, Daman and Diu from 26 November 1911 (Articles 45 to 47).
  • Portuguese (Civil) Code (Articles 1075 to 1081) and Code of Civil Registration (Portuguese).
  • Goa, Daman and Diu Laws Regulations, 1962 and Laws No. 2 Regulations, 1963.
• Jammu and Kashmir laws:
  • Hindu Marriage Act, 1980.
  • Muslim Marriages Registration Act, 1981 (Section 3).
  • Christian Marriage and Divorce Act, 1957 (Sections 26 and 37).
• State rules noted (registration rules under Section 8 and related laws):
  • U.P. Hindu Marriage Registration Rules, 1973.
  • Pondicherry Hindu Marriage (Registration) Rules, 1969.
  • Haryana Hindu Marriage Registration Rules, 2001.
  • West Bengal Hindu Marriage Registration Rules, 1958.
  • Tripura Hindu Marriage Registration Rules, 1957, and Tripura Special Marriage Rules, 1989.
  • Registration of Hindu Marriages (Karnataka) Rules, 1966.
  • Chandigarh Hindu Marriage Registration Rules, 1966.
• Registration Act, 1908, Section 6: Sub-Registrars appointed as Marriage Registrars in Pondicherry.

Also cited in footnotes: none. The judgment has no footnotes.

Judgement

The Court directed the States and the Central Government to take these steps:

1. The States must notify the procedure for registration within three months from the date of the judgment. They may amend existing Rules or frame new Rules.
2. Before bringing the Rules into force, the States must invite objections from the public. They must give due publicity and keep the matter open for objections for one month from the date of the advertisement.
3. When that month ends, each State must issue an appropriate notification bringing the Rules into force.
4. The officer appointed under the Rules must be authorized to register marriages. The age and marital status (unmarried or divorcee) must be clearly stated.
5. The Rules must also provide for the consequences of non-registration and of filing a false declaration. Their object must be to carry out the Court's directions.
6. When the Central Government enacts a comprehensive statute, it must be placed before the Court for scrutiny.
7. Counsel for the States and Union Territories must ensure that the directions are carried out immediately.
8. The Registry must hand over a copy of the order to the Solicitor General for necessary follow-up action.
9. The Court recorded its appreciation of the help given by Mr. G.E. Vahanvati, Solicitor General, and Mr. Ranjeet Kumar, senior advocate, as amicus curiae.

The judgment records no costs order.

Legal Principle / Ratio

Marriages of all citizens of India, whatever their religion, must be compulsorily registrable in the State where they are solemnized. Registration is evidence of the marriage. It is not proof of validity by itself. Key holding: marriages "should be made compulsorily registrable in their respective States, where the marriage is solemnized".

Critical Analysis

Analysis based on the judgment text.

• The Court fixed a three-month time limit for the Rules. It did not say what follows if a State misses it.
• The Court said registration is not a determinative factor on validity. It also said the consequence of non-registration must be provided for in the Rules. It left the form of that consequence to the States.
• The Court did not decide how Section 8 of the Hindu Marriage Act, 1955 fits with a compulsory regime. It noted only that Section 8 leaves the choice to the parties, and that non-entry does not affect validity.
• Goa has its own compulsory system. The judgment does not say how the directions apply there.
• The Central Government's comprehensive statute was left for the future. The judgment sets no date for it.

Significance

• The Court moved registration of marriage from a State-by-State choice to a duty for every citizen, whatever the religion.
• The Court treated registration mainly as evidence. It kept the rule that registration does not decide validity.
• The Court linked registration to women's protection: maintenance, residence, inheritance and desertion.
• The Court kept control over any future Central law by asking that it be placed before the Court for scrutiny.

Exam-Important Points

• Rule: marriages of all citizens, of all religions, must be compulsorily registrable in the State where solemnized. Trap: registration is evidence, not the test of a valid marriage.
• States had to notify the procedure within three months, after inviting public objections for one month.
• The Rules must state age and marital status, and provide for non-registration and false declarations.
• Marriage registration falls within Entry 30, List III (vital statistics); marriage itself is in Entry 5.
• Section 8(2), Hindu Marriage Act: the State may make registration compulsory. Section 8 says the entry is for facilitating proof, and non-entry does not affect validity.
• Only four statutes made registration compulsory before this case: Bombay (1953), Karnataka (1976), Himachal Pradesh (1996) and Andhra Pradesh (2002).
• The Central Government's comprehensive statute must be placed before the Court for scrutiny.
• India's reservation under Article 16(2) of CEDAW said compulsory registration was not practical.

Prepared from the full text of the judgment. This judgment has no numbered paragraphs. The citation is not in the judgment text.