Recommendations given in the year 2008 by the Law Commission of India are still to be made in to a law on divorce
Under the Constitution of India family matters are in the concurrent
jurisdiction of the Centre and States [List III, Entry 5]. Parliamentary
legislation on compulsory registration of marriages is therefore not only
possible but also highly desirable. This will bring country-wide uniformity in
the substantive law relating to marriage registration and will be helpful in
effectively achieving the desired goal. Rules under the proposed Act may of
course be made by the State Governments, and this will take care of the local
social variations.
We therefore recommend enactment of a central law on the subject. We
further recommend consequential changes in all the relevant central and local
laws.
Our detailed recommendations are as follows:
(i) A “Marriage and Divorce Registration Act” [hereinafter referred to
as the “proposed law”] should be enacted by Parliament, to be made
applicable in the whole of India and to all citizens irrespective of
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their religion and personal law and without any exceptions or
exemptions.
(ii) The proposed law should deal only with registration of marriages
and divorces and must not touch any substantive aspect now
governed by various matrimonial laws – general and communityspecific.
(iii) A 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. The State Governments may set up such offices, appoint
Marriage and Divorce Registration Officers by name or ex officio at
various levels, and prescribe rules to regulate their working.
(iv) Since in all communities marriages are solemnized with a
religious ceremony, the religious officials solemnizing the marriages
can play a major role in respect of registration of marriage. The
proposed law should make it mandatory for the “officiating priest”
of every marriage to prepare and maintain proper records of all
marriages in a prescribed form. The term “officiating priest” should
for this purpose include the following:
a) pundits, purohits and other Hindu religious officials by whatever
name called who officiate at a marriage;
b) kazis and all other Muslim religious officials by whatever name
called who solemnize a nikah;
c) Christian pastors and other Church officials who solemnize a
Christian marriage;
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d) Parsi, Jewish and Bahai religious leaders who officiate at any
marriage among these communities;
e) clerics of all other religions performing this function; and
f) any other person, whether religious official or not, who performs
religious or customary rites at any marriage.
(v) It should be made mandatory for every “officiating priest”
(as defined above) to transmit copies of all their records at regular
intervals to the local Marriage and Divorce Registration Officer.
(vi) While transmitting his records to the Marriage and Divorce
Registration Officer, the officiating priest should also send a
certificate that every marriage included in the record was to the best
of his knowledge and belief in accordance with the requirement of
the marriage law applicable to parties.
(vii) The proposed law should amend the following Acts to insert
in them the requirements stated above at paras (v) and (vi) above:
a) Indian Christian Marriage Act 1872;
b) Kazis Act 1880;
c) Parsi Marriage and Divorce Act 1936; and
d) Hindu Marriage Act 1955.
.
(viii) The Kazis Act 1880 should be further amended to make it
applicable both to private kazis and to every person who performs
the nikah ceremony at any Muslim marriage.
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(ix) The Special Marriage Act 1954 should be amended to
provide that Marriage Officers working under its provisions shall
transmit their records at prescribed intervals to the Marriage and
Divorce Registration Officer of the concerned district.
(x) The Foreign Marriage Act 1969 should be amended to
provide that Indian Diplomatic Missions in all countries shall send at
prescribed intervals their records to the Ministry of Foreign Affairs
in Delhi for onward transmission to the State Registry of the State
concerned.
(xi) The Kazis Act 1880 should be further amended to provide
that every divorce among the Muslims, in whatever form it takes
place, must be communicated in writing to the kazi of the area
within a prescribed time. The kazis should be required to maintain
proper records of all such divorces and periodically transmit their
records of divorces to the Marriage and Divorce Registration Officer
of the area along with marriage records.
(xii) Section 29 of the Hindu Marriage Act 1955 should be
amended to provide that all customary divorces among the Hindus,
Buddhists, Jains and Sikhs should be duly registered with the
Marriage and Divorce Registration Officers working under the
proposed law.
(xiii) The following Acts should be amended, on the pattern of
the provision to this effect found in the Parsi Marriage and Divorce
Act 1936, to require the registries of courts granting decrees of
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divorce or nullity of marriage to periodically send information about
the same in a prescribed form to the local Marriage Registration
Office:
(a) Indian Christian Marriage Act 1872;
(b) Parsi Marriage and Divorce Act 1936;
(c) Special Marriage Act 1954; and
(d) Hindu Marriage Act 1955.
(xiv) The proposed law should declare failure to register a
marriage or divorce as required by its provisions to be an offence
punishable with heavy fines and, in default of payment of fine, with
imprisonment for a prescribed period.
(xv) The proposed law should also provide that no judicial
relief will be granted in a disputed matter if the concerned marriage
or divorce is not duly registered under its provisions.
(xvi) The proposed law should be given an overriding effect on
all other laws through a non obstante clause duly inserted in it.
(xvii) The following laws should be repealed with necessary
saving provisions:
a) Births, Deaths and Marriages Registration Act 1886;
b) All State laws dealing with registration of marriages in general;
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c) Muslim Marriage and Divorce Registration Acts (by whatever name
called) in force in West Bengal, Bihar, Jharkhand, Orissa, Assam
and Meghalaya; and
d) Any provision relating to registration of marriages in any preexisting
law which comes in conflict with the provisions of the
proposed law (to the extent of such conflict).
