Assam’s repeal of Muslim marriage law is a mistake
Singling out a chosen community for such a drastic step cannot stand the constitutional test of equal justice and non-discrimination.
The reported move of the government of Assam to repeal the state’s 90-year-old Muslim Marriages and Divorces Registration Act is, to say the least, ill-advised. The decision that marriages among Muslims should instead be registered under the Special Marriage Act 1954 smacks of ignorance about the nature and objects of this Act.
Marriages among Muslims are solemnised by a nikah ceremony conducted by a religious official called qazi (also spelt as kazi). The qazis prepare and issue to the parties a signed nikah-nama (marriage certificate) containing all relevant information about the marriage, parties thereto and mutually settled terms of marriage. They also prepare talaq-namas (divorce-deeds) as and when asked for by interested persons. The qazis preserve with them copies of all marriage and divorce deeds they issue, and all these documents are admissible under the law as proof of related transactions.
During the Mughal rule in the country, official qazis were designated by the local governments for various administrative units under their control. The British rulers inherited the system and maintained it for a long time. As per necessity, they associated designated qazis, along with selected pundits, with the civil courts as “native law officers” to expound to the British judges the principles of Hindu and Muslim laws applicable to disputes that were under the then charters of governance to be settled in accordance with the parties’ respective personal laws.
After the system of associating native law officers with the courts was abolished by a law enacted in 1864, the government altogether stopped designating qazis. Muslim leaders demanded that it should continue nominating official qazis to perform non-judicial functions. A Mohammedan Marriage and Divorce Registration Act was then enacted in 1876 for Bengal, Bihar and Orissa (then constituting a single province) re-empowering the government to designate official qazis by the title ‘Mohammedan Registrars’ to perform the limited function of solemnising marriages and preparing divorce documents. These so-called Registrars were to be picked from amongst religious functionaries and were no different from qazis — which term was seemingly avoided to dispel the impression that the nominees had any adjudicatory powers.
The Act laid down the procedure for preparing records of marriages and divorces and provided forms for the same. Registration under the Act was kept optional, and it was clarified that mere registration would not validate an otherwise invalid marriage or divorce. The Births, Deaths and Marriages Registration Act enacted by the central legislature in 1886 amended the Bengal Act under reference to the effect that the records of marriages kept under it should be periodically transmitted to the local registrar-general’s office.
When, in 1912 Bihar and Orissa were separated from Bengal, the 1876 Act remained in force in both the new provinces with necessary adaptation. While in Odisha it was locally re-enacted two years after Independence, it remains in force in Bihar and the newly created state of Jharkhand. Assam, which also was initially under the control of the Bengal government, had been made a separate administrative unit in 1874 and was reorganised as a new province in 1921. The Bengal Act of 1876 was locally re-enacted there in 1935 under the name Assam Muslim Marriages and Divorces Registration Act. When in 1971 a separate state of Meghalaya was carved out of Assam, the 1935 Act was retained in force there.
In 1955 the Hindu Marriage Act provided for registration of all marriages governed by it with Marriage Registrars to be designated by state governments, leaving it to the latter to decide whether registration would be optional or compulsory. Administrative rules framed under the Act in various states (including Assam) generally kept it optional until the Supreme Court directed, in the Seema case of 2006, that all marriages everywhere in the country must be compulsorily registered. The states then either amended their existing registration rules accordingly or enacted new laws for the mandatory registration of marriages. Compulsory registration would, of course, not affect the nature of marriages which would continue to be governed by the parties’ personal law. The Assam Hindu Marriage Registration Rules of 1961 too were amended along the same lines. The Muslim Marriages and Divorces Registration Acts in force in the six states mentioned above, or the rules framed under them, were also amended to comply with the apex court directive.
The case of the Special Marriage Act 1954 is essentially different. It provides for the solemnisation of civil marriages to be governed by its own provisions and not by any personal law. Additionally, the Act provides the facility of voluntarily converting a pre-existing religious marriage solemnised under the personal law of the parties into a civil marriage. The married couples, if they mutually decide to bring their marriage under the civil marriage regime, have to register it for such an effect under Section 15 of the Act. This special provision of the Act is not an administrative but a substantive legal provision which, if availed, would entirely change the nature of marriage and take it out of the ambit of the personal law hitherto applicable to it.
Requiring marriages among Muslims to be registered under this exceptional provision of the Special Marriage Act would amount to forcing the parties to altogether abandon their personal law. Singling out a chosen community for such a drastic step, while leaving marriages among the other communities to be governed by their respective personal laws, cannot stand the constitutional test of equal justice and non-discrimination. Such an extraordinary measure full of revolutionary implications cannot be taken in a particular state. Of course, if Parliament in its wisdom decides to adopt such a measure — repealing at the same time all other marriage and marriage registration laws wherever in force — this may be seen as a simpler way to bring the nation under a Uniform Civil Code.
Tahir Mahmood is professor of law and former member, Law Commission of India. The views expressed are personal
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