What are the customary procedures for marriages under Muslim Law in India?

(a) Generally

It is customary to send a relative of the Bride inside the house accompanied by two witnesses. The relative would ask the Bride within the hearing of those two witnesses: (1) whether she authorises him to contract marriage on her behalf with so and so. (2) For the Dower (Mahar) specified or unspecified.

When the Bride says ‘yes’, three persons (i.e., one relative and two witnesses) come out at the place where the bridegroom and the Kazi/Quazi are sitting. Kazi/Quazi will ask the bridegroom (i) Whether he offers to marry (so and so); (ii) on payment of Mahar (Dower). The Bridegroom says ‘yes’.

The relation will then say that he is the agent of the Bride. Thereupon, Kazi/Quazi will ask the Agent if he agrees to the marriage of Bridegroom (so and so) with the Bride (so and so) payment of Mahar (dower). The Agent says ‘yes’. Witnesses are present so that if Kazi/ Quazi have any doubt on any point he can ask them and satisfy himself about the consent of the girl. Kazi/Quazi will make entries in his record and he will then recite scriptures from the Quran. The marriage is thus complete. In any case, the Kazi/Quazi’s function is purely evidentiary and nothing beyond. However, it is no denying that Kazi’s always officiate Muslim Marriages. Therefore, it is ideal to know more about it.

(b) Historic background of Quazi/Kazi

The Kazi/Quazi is the institution or a functionary exercising the powers and duties of Qada (Judicial Administration). As such, Kazi used to perform juridical and advisory functions in areas of Muslim dominance, all over the world. In India, the Sultans of Delhi and later the Mughal Emperors set up a well-organized network of Kazi. The Kazis and their Chief (Kazi/Quazi-ul-kuzzat) then used to perform not only the judicial functions but also they acted as notary public, document attesters, registrars, marriage officers etc. When British Raj came to India, the British Raj, under their judicial administration, accommodated the institution of Kazi/Quazi. Warren Hastings, under his Judiciary Plan of 1772, gave advisory functions to Kazi and Pandit for administering Law to Muslims and Hindus.

Thus during this period of British Raj, the Kazi performed functions of solemnizing marriages, approving divorces, preparing deeds and documents and advising the Muslims in other private and family matters. The powers of appointing Kazi were with the Government and, therefore, to regulate their appointment, the British Raj came out with the legislative enactment.

The last of such enactments is the Kazi Act of 1880. After independence of India, the Adaptation of Laws Order of 1950 gave the Kazis Act of 1880 life. Section 4 of the Act makes it abundantly clear in express terms that nothing in the Act confers judicial or administrative powers on Kazi or that the Act does not render the presence of Kazi necessary or that it does not prevent anyone to act as Kazi. As is clear by now, Kazis do officiate Muslim Marriages and issue their own Nikah-Nama or Marriage Certificates. However, it is not the same thing as the Marriage Certificate under (1) Birth, Deaths and Marriages Registration Act, 1886 (2) Special Marriage Act, 1954 (3) Parsi Marriage and Divorce Act, 1936, (4) Christian Marriage Act, etc.

Therefore, all that is required is to give (1) Statutory Coverage to Nikah-Nama issued by Kazis appointed or functioning under the Kazis Act, 1888. For this purpose it will be necessary to impose (2) Statutory Duty oh Kazis to get the marriage (solemnized by them) to be registered under the Birth, Deaths and Marriages Registration Act. In this connection it may be noted that marriages solemnized under the Parsi Marriage and Divorce Act a duty is imposed upon the functionary Priest to get the marriage solemnized by him. In fact, the Parsi Marriage and Divorce Act goes a step further requires even Divorces to be registered. Such provision can be enacted for Muslims also.