SECULAR INDIAN MARRIAGES

A BENEFICIAL LAW

In the Budget session, Parliament proposes to amend the Registration of Births and Deaths Act, 1969,  to include compulsory registration of marriages without mentioning the religious denomination of parties. The proposal is based on the fact that infrastructure for registration of Births and Deaths is already available country wide and only addition of marriage registration to the existing law is required. The proposed Bill is stated to be beneficial to women by protecting them from unnecessary harassment in matrimonial and maintenance cases by providing handy proof of marriage. It is said to also provide evidence in matters of custody of children and protect rights of children born from wedlock besides providing legal protection to couples in cases of inter-religious matrimony. Above all, it is said to provide succour to brides or grooms who solemnize hasty marriages for fast track dreams of lives abroad by ensuring instant testimony of NRI marriages. This move is proposed to  supplement efforts of State Governments to register NRI marriages especially of girls hailing from rural areas.

NO UNIFORM CIVIL LAW OF MARRIAGE

The Indian Parliament has enacted different family law legislations for different religious communities based on their personal laws. Article 44 of the Constitution requires the State to secure for the citizens of India, a uniform Civil Code. However, Article 44 enshrined in Part IV of the Constitution dealing with Directive Principles of State Policy are non-justiciable and cannot be enforced. Accordingly, our nation is a unique blend and merger of codified personal laws of Hindus, Christians, Parsis and to some extent of Muslim laws. The Hindu Marriage Act, 1955 (HMA) is an Act to amend and codify the law relating to marriage among Hindus who include Buddhists, Jains or Sikhs by religion. In respect of persons who do not profess any particular religion or are foreigners, the Special Marriage Act, 1954 (SMA) governs all their matrimonial causes. Hence, any foreigner can marry another foreigner or an Indian under the SMA. The Foreign Marriage Act, 1969, makes provisions relating to marriages of citizens of India who are resident outside the territorial limits of India. There exists no uniform family related law in a single statutory book for all Indians which could be universally applicable to all religious communities who coexist in India. Polygamous relationships are not recognised except under Muslim Personal Law. Even though live in relationships may not be accepted in traditional Indian society, they have found legislative acceptance after the enactment of the Protection of Women from Domestic Violence Act, 2005.

POSITION OF LAW

The principal legislation i.e. HMA under which marriage is a sacrament lays down that a Hindu Marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Registration of Hindu marriages is optional as State Governments may make rules providing for registration of marriages. However, this societal practice of optional registration is now not serving the test of time. This lack of will on the part of the Indian legislature to enact a compulsory law for registration of marriages had prompted the Supreme Court in Seema Vs. Ashwani Kumar to issue directions to all States in India in 2006 to promulgate rules for compulsory registration of marriages in a time bound period, irrespective of the religion of parties. This reform spearheaded by the National Commission for Women was on a progressive note to hinder child marriages, prevent marriages without consent of parties, check bigamy or Polygamy, enable women’s rights of maintenance, inheritance and residence besides deterring desertion of spouses. However, despite six years having gone by, this Court mandate has not been implemented by all States countrywide.

A UNIQUE ROLE MODEL

The family laws in force in Goa, Daman and Diu relating to marriage, divorce, children and succession are primarily contained in the Portuguese Civil Code of 1867. By the Goa, Daman and Diu (Administration) Act, 1962, Parliament has maintained the Portuguese laws in force in Goa, Daman and Diu before its liberation until amended or repealed by the legislature. Law of marriage as a civil contract is in force in the territories of Goa, Daman and Diu w.e.f. May 26, 1911. Goa today therefore has unity in diversity as marriage in the State of Goa is a civil contract solemnized between two persons of different sex with the purpose of legitimately constituting a family. The solemnisation of marriage is by a compulsory civil registration leaving it open to parties to undergo personal law ceremonies optionally. All Indian citizens and foreigners in Goa adhere to the Civil Family Law Code of Goa.

POSITION UNDER HMA TODAY

HMA mandates solemnisation of ceremonial marriage and performance of customary rites and ceremonies is compulsory whereas registration is optional.  Questions relating to whether registration of marriage is substantial proof of Hindu marriage and whether a certificate of marriage being a public document allows a presumption of a valid marriage under the Indian Evidence Act, have often posed problems for parties. Elucidating the law, it may be commented that purpose of registration of Hindu marriages is to facilitate proof of a Hindu marriage and the parties to any such marriage may exercise the option of having particulars relating to their marriage entered in a Hindu Marriage Register. Clearly, entry in any such register is only optional and the validity of any Hindu Marriage shall in no way be affected by the omission to make such an entry. Therefore, a Hindu marriage solemnised by essential rites and ceremonies is to be proved independently by the performance of such customary practices and registration of a Hindu marriage is only for the purpose of facilitating the proof of such ceremonial unions.

PERFORMANCE OF CEREMONY ESSENTIAL

The registration pre-supposes performance of a valid ceremonial marriage. Thus, performance of Saptpadi (that is taking of 7 steps by the bridegroom and the bride jointly before the sacred fire) is a sine qua non for solemnising a Hindu marriage. Hence, the extract of the Hindu Marriage Register, which contains the statements of parties of such a marriage, is not substantial evidence to prove the marriage when one of the parties to the registration repudiates or denies the same. It may be a conclusive proof for all other purposes concerning third parties or all others. Noteworthy to say, any third party or a public authority  cannot hold that a certificate of Hindu marriage is not substantial proof of the marriage itself . However, if one of the parties denies, repudiates or declines the entry in such a Hindu marriage certificate, then it is for the other party to prove the fact of solemnisation of marriage by establishing performance of customary rites and ceremonies which make it conclusive. In such a situation, merely because the Hindu marriage is registered or the particulars containing the marriage are entered in a Hindu marriage register, will not go to show that the marriage was solemnised in accordance with the conditions prescribed in HMA. Therefore, the registration of a Hindu marriage alone is not  substantial proof of a Hindu Marriage, if one party repudiates, declines or denies the marriage. The effect of production of a marriage certificate is only to the extent that parties have made such statements before the Registrar of Marriages. The marriage certificate being a public document, favourable presumptions can be drawn under the Indian Evidence Act, subject to their being questioned by parties to the marriage themselves. However, for all others, the marriage certificate may be conclusive.

LAW IN A FLUX – THE DILEMMA REMAINS

The Haryana Compulsory Registration of Marriages Act, 2007 enacted to provide for compulsory registration of marriages solemnised in the State of Haryana irrespective of caste, religion and creed also authorise the Registrar of Marriages to decline registration of marriage if the marriage between the parties is not performed in accordance with the personal law applicable to parties. The Haryana Marriage law enacted pursuant to the 2006 Supreme Court directions pre-supposes performance of Hindu rites and ceremonies as an essential condition. Punjab and UT Chandigarh have not made any such compulsory Marriage Registration Act.  If the registration of marriages is made compulsory under the Registration of Births and Deaths Act, 1969 without corresponding amendments to the HMA or other personal laws, the dilemma will remain. Until and unless registration of marriages is also made mandatory and compulsory under the HMA and other personal laws, the exercise will be incomplete. If parties to a Hindu marriage choose to resile, repudiate or contradict a proposed compulsory registration under the new proposed marriage registration law, the very solemnisation of marriage will have to be established under the HMA since registration alone will not serve the purpose. The escape route will still remain. Therefore, unless parallel amendments are also carried out in the HMA or other personal laws, the new law may be an exercise in futility and the laudable purposes of the fast track registration process may be defeated. It is therefore, necessary and essential that HMA and other personal laws are also brought in tandem with the proposed beneficial marriage registration law  by also making registration compulsory under the HMA and other personal laws. The Goan model which has survived the test of time for 450 years is a useful example for examination in this context. Our law makers would do well if they harmonised the proposed marriage registration law with other prevalent personal family law legislations applicable to make the registration laws a success. A wholesome overhaul is better than a piece meal exercise. The laudable purposes must not be lost in lofty announcements.