As for the registration of Muslim Marriages, it may be noted that we have the Indian Registration Act of 1908. However, the Act does not impose a legal duty upon any person to register a marriage or divorce.
In fact, Section 26 of the Act makes it clear that no registration of divorce, which is otherwise valid under Muslim Law, shall not be invalid for non-registration. Similarly, if marriage is invalid under Muslim Law, mere registration will not validate it. Section 8 of the Act provides for registration of marriage and for divorces in the forms of Talaq, Khula and Talaq-e-Tafwiz.
The State of Maharashtra has enacted the Maharashtra Regulation of Marriage – Bureaus and Registration of Marriages Act, 1999. Section 6 of the Act casts duty upon the husband to get the marriage registered. What would happen if husband fails to fulfill his obligation and dies? The division bench of the Hon’ble Court held that (although no duty is cast upon wife even then) Wife can get the marriage registered, and if both fail to get marriage registered, as was the case before the court, Husband’s Death Certificate be treated as marriage certificate but it in no case, it can be held that and because marriage was not got registered, under the Act, no marriage had taken place. In this connection, it may be noted that even if Marriage is not registered, it can be proved from the surrounding ‘facts and circumstances’ not under Muslim Law but surely under the Indian Evidence.
Therefore, it should be crystal clear that registration of marriage/divorce is primarily for the purposes of statistics, no doubt, ion case of dispute of marriage/divorce but it is not the final and foolproof evidence and it (the evidence in the form of Certificate) can be dispelled and displaced by some other cogent and conclusive evidence. Therefore, registration of Muslim Marriages/Divorce cannot be over emphasized and over-hyped but at the same time, it cannot be oversimplified or underplayed for it is very essential for the civilized society like India.
ADVERTISEMENTS:
Taking the stock of both, it can safely be said that Nikah-Nama issued by Kazis appointed or functioning under the Kazis Act, 1888 must be given statutory recognition. For this purpose, statutory obligation can be imposed on Kazis by suitable amendment in the Kazis Act calling upon them to get the marriage (solemnized by them) registered under the Birth, Deaths and Marriages Registration Act. Such an amendment in the Kazis Act will undoubtedly in consonance with the Parsi Marriage and Divorce Act.
Muslims opposing registration must clearly understand that by registration, the Law or the Sovereign State does not interfere in act of solemnizing the marriage because registration is subsequent event of solemnization of marriage.