FAMILY LAW- 1 PROJECT

WINTER SEMESTER 2019

SEEMA vs. ASHWANI KUMAR: CASE ANALYSIS

~ SAMARTH SANSAR
~ 218099
E-mail id- [email protected]

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Contents

1. INTRODUCTION............................................................................................................3
1.1. STATUES RELATED TO REGISTRATION OF MARRIAGE IN INDIA.......3
2. ANALYSIS........................................................................................................................4
2.1. RECENT DEVELOPMENTS:.................................................................................6
3. CONCLUSION.................................................................................................................7
3.1. THE ROAD AHEAD................................................................................................8
BIBLIOGRAPHY..................................................................................................................10
Primary Sources:................................................................................................................10
Statutes:...........................................................................................................................10
Conventions:...................................................................................................................10
Cases:...............................................................................................................................10
Secondary Sources:............................................................................................................10
Reports:...........................................................................................................................10
Online Resources:...........................................................................................................10

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 1. INTRODUCTION

Marriage according to the Hindu Law1 is a holy sacrament and sacred bond between two
people. It is based on the principle “viret unor consentur in lege una persona” which means
husband and wife are considered one in law. “The Constitution of India in List III (concurrent
list) of the Seventh Schedule under entry 30 provides for registration of marriage within the
ambit of the expression vital statistics”.2 This project is attempt to showcase status of
registration of marriages in India, the importance of registration and problems faced due to
not registration, in light of judgement by Hon’ble Supreme Court in Seema v. Ashwani
Kumar3.

1.1. STATUES RELATED TO REGISTRATION OF MARRIAGES

Presently, there are two legislations dealing with the issue of registration of marriages i) The
Hindu Marriage Act, 1955 (hereinafter Hindu Act) ii) The Special Marriage Act, 1954
(hereinafter SMA). Under S. 8 of the Hindu Act, 1955 it has been provided that “respective
state governments can draft rules for registration of marriages for the purpose of facilitating
evidences of Hindu marriages”.4 Similarly, the SMA, 1954 has certain provisions regarding
solemnisation and registration of marriages. Also the marriage registration is compulsory
under the Christian Marriage Act, 1872 and The Parsi Marriage and Divorce Act, 1936. The
Muslim marriages guided by The Kazis Act, 1880 provide that nikah-namas are to be filled by
the parties and authenticated by Kazi which can serve as a proof of marriage, however it is
not compulsory. By observing all the legislations dealing with registration of marriages,
which was also done by Supreme Court in Seema v. Ashwani Kumar it is implicit that only 4
statutes, which cover 5 states, provide for compulsory registration of marriages. They are: 1.
The Bombay Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat), 2.
The Karnataka Marriages Act, 1976, 3. The Himachal Pradesh Registration of Marriages Act,
1996 and 4. The Andhra Pradesh Compulsory Registration of Marriages Act, 2002. The other
State governments having such provisions have not made it compulsory and made for
voluntary registration of marriages. This is where the problem lies, as most of the state
governments do not compulsorily provide for marriages to be registered and no strict penalty
1
The Hindu Marriage Act, 1955.
2
Seventh schedule, Constitution of India.
3
Seema (SMT.) v. Ashwani Kumar, (2006) 2 SCC 578.
4
Ibid.

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is imposed people don’t tend to adhere to it. The consequences of non-registration, which is
generally bore by women, are not often realised until such circumstances arise. The Supreme
Court held that “though, the registration itself cannot be a valid proof and just by getting a
marriage registered it cannot be held valid but it has great evidentiary value in matters of
custody of children, rights of children etc.”5

During the course of this project an attempt has been made to analyse the judgement of
Supreme Court in the case Seema v. Ashwani Kumar regarding compulsory registration of
marriage of all citizens of India the need of such registration and the progress that has been
made in conformity to the judgement.

2. ANALYSIS

From time to time various Courts have opined that registration of marriages should me made
compulsory as it ‘acts as a record of marriage and helps in avoiding and solving disputes
regarding solemnisation of marriages’.6 The Madras High Court in Kanagavalli v. Saroja
pointed that “registration of marriage provides security to women and non-registration of
marriages has landed many women in a relationship which while extracting from her, all the
duties of a wife, leaves her with neither the right under law, nor the recognition in society. In
addition, the Hindu male is able to contract a second marriage without any fear”. 7 Finally it
was in 2006 when Supreme Court giving the historical verdict in Seema v. Ashwani Kumar
held that “marriages of all persons who are citizens of India belonging to various religions
should me made compulsorily registrable in their respective states, where the marriage is
solemnised”.8 The Court in its judgement referred to an affidavit filed by National
Commission of Women in which it was stated that “in most cases non-registration of
marriage affects the women to a great extent and a legislation regarding compulsory
registration of marriages would solve multiple issues related to women such as:

a) Prevention of child marriages and ensuring minimum age of marriage.

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 f) Deterring desertion of women by men.
g) Deterring selling of young girls by parents/ guardians under garb of marriage”.9

The Court discussed the merits of registration of marriages in depth and observed that most
of the states have similar provisions, but they have only been notified and but never enforced.
The Court stated that “as a consequence of non-registration any presumption available from
registration of marriage would not be granted to such a party”. 10 In this regard the Court
directed the States and Central governments to take appropriate steps and procedure of
compulsory registration be notified within three months. The Court also directed that in order
to follow the directions given by them either the existing legislations should be amended or
new rules be enacted taking in consideration the objections from public. The said rules should
also provide for the consequences of non-registration of marriages. An officer was to be
appointed who would be authorised to register marriages. Later the same view was reiterated
by Punjab and Haryana High Court in Baljit Kaur & Anr v. State of Punjab & Anr.11 that
“compulsory registration of marriages will help curbing the disputes related to solemnisation
of marriage”.12 Unfortunately, till date there has not been any concrete solution to this issue
and registration of marriages for every citizen of India is not yet made compulsory. One of
the reasons of not being able to have a legislation in this regard, which was also discussed in
Seema v. Ashwani Kumar is that “it is not practical in a country like India which is home to
such vast number of customs and religions, also keeping in mind the literacy level, to have
compulsory registration of marriage”. 13 India which is a signatory to the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) since 1980 has
made the same reservation under Article 16(2) of the Convention that “though it is highly
desirable to have compulsory registration of marriages but due to above mentioned reasons
India cannot stick to it”.14

9
“Problems Relating to NRI Marriages”, available at: http://ncw.nic.in/pdffiles/nridodont.pdf (last visited on
February 26, 2019); (2006) 2 SCC 578.
10
(2006) 2 SCC 578.
11
(2008) 151 PLR 326
12
Najma v. Registrar General of Marriages & Anr, 2012 (1) KHC 655
13
Supra note 10.
14
Article 16(2), Convention on the Elimination of All Forms of Discrimination against Women, A/RES/34/180,
(Dec.18, 1979), and CEDAW;

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 2.1. RECENT DEVELOPMENTS:

In 2008, after the Supreme Court judgement, The 18 th Law Commission in its 205th report
recommended that “registration of marriages of all religions should be made mandatory by
the government”15 in order to curb rampant child marriages in India and also other
irregularities that attach with it. Further taking suo moto cognizance The Law Commission
taking presented its 211th report in view of Supreme Court Judgement in Seema v. Ashwani
Kumar. The Commission noted that “we have the Births, Deaths and Marriages Registration
Act, 1886 which provides for registration of births and deaths but has no mention of
registration of marriages, therefore the title of the act is somewhat deceiving”. 16 In this regard
it was recommended that a “Marriage and Divorce Registration Act” be enacted which would
be applicable on every citizen of India without any exceptions and irrespective of their
religion, customs etc. the committee was of opinion that this law would deal only with
registration of marriages and divorces and if such legislation is enacted it will serve the
rationale behind the repeated directives of Supreme Court regarding mandatory registration
of marriages. The committee also stated that most of the states either don’t have any general
law governing effective registration of marriages of all religions or the states having such
legislations don’t enforce them strictly. It is because of this, people don’t adhere to these laws
as almost negligible penalty is imposed on people for non-adherence. Further, respective
governments don’t put effort in creating awareness among masses regarding registration of
marriage and people are often under misconception that by registering marriages they will
lose the right of being governed by religious laws and will become civil marriages and guided
by civil laws. Such misconceptions need to be eradicated at the earliest and benefits of getting
marriages registered must be embedded in them. Another flaw which appears in system and
can be blamed for not having any such legislation is lack of ‘political will’. In 2012, a bill
was tabled in parliament to amend the Registration of Births and Deaths Act, 1969 which
was in conformity to the directions given by Hon’ble Supreme Court. The bill passed by
Rajya Sabha lapsed due to dissolution of the 15th Lok Sabha. While on various occasion it has
been reiterated by political leaders that such a bill would fetch long term benefits for women
in respect to their rights but hardly any concrete step has been taken. It was in July 2017

15
Law Commission of India, “205th Report on Proposal to amend the Prohibition of Child Marriage Act, 2006
and Other Allied Laws” (Feb., 2008).
16
Law Commission of India, “211th Report on Laws on Registration of Marriage and Divorce – A proposal for
Consolidation and Reform” (Oct., 2008).

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again when The Law Commission of India upon request made by Dept. of Legal Affairs
presented its 270th report which again recommended that “compulsory registration of
marriages is a necessary reform and to amend the Registration of Births and Deaths Act, 1969
suitably to include compulsory registration of marriage as well within its scope so that
existing administrative machinery is able to carry out registration. Further, for this purpose
i.e. compulsory registration of marriages including births and deaths the Commission
recommends adoption of complete automation process by using the process of paperless
documentation so the greatest extent possible”.17 The commission stated that this proposed
new enactment is not at all aimed at changing or striking down any prevailing personal/
religious/ cultural law, as feared by many, but is only to smoothen the existing laws by
bringing a simple change that is compulsory registration of marriages. If the
recommendations are accepted, they won’t only provide new rights but the existing rights
will have a better implementation and also plight of women would be put on check to a large
extent.

3. CONCLUSION

By observing closely the dissemination of events with regard to registration of marriages and
the developments made it can be deduced that it’s high time when we all recognise the
importance of having marriages registered. The biggest losers in such situations are women
who are either denied their rights such as maintenance or rights of children or they have to
strive hard to get their rights enforced. First of all there is need to create awareness in this
regard and the doubts circumventing this issue must be cleared from the minds of people. The
benefits of registered marriages which don’t only include new rights but also better
enforcement of existing rights under family law by protecting rights of spouses in the
marriage must be promoted to public at large. In this regard it is important to mention the
Bombay High Court judgement in Sushma w/o Hemantrao Bodas v. Malti w/o Madhukar
Machile where the Court held that “registration of marriage facilitates proof of marriage in
succession and other disputes and held in favour of a valid marriage on the basis of marriage
certificate”.18 The misconceptions present in minds of certain class of people that by getting
their marriages registered they lose the religious and customary backing and their marriage
become civil marriage and is to be governed by civil laws is wrong. Having a legislation
which provides for compulsory registration of marriage will help in eradicating many social
17
Law Commission of India, “270th Report on Compulsory Registration of Marriages” (July, 2017).
18
2009 (111) Bom LR 3974.

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evils that are prevalent against women such as, forced marriage, child marriage, denial of
matrimonial property and maintenance, bigamy and much more. The same has been reiterated
by many courts in various judgements.

Also the need of a strong political will in this regard cannot be excluded. The government
needs to push forward a legislation which covers all of India and impose penalty on people
who are found not adhering to the law. A bill in this regard has once lapsed in the parliament,
court decisions have not been complied and various Law Commission recommendations have
been pending in this regard. The government is duty bound to ensure that practices such as
child or forced marriages are eliminated in entirety and such a step would ensure gender
equality and women empowerment and according to National Commission of Women’s
affidavit a legislation in this respect will serve the purpose. The United Nations has also
recognised “the importance of having a record of deaths, births and marriages as it provides
for vital data which is essential for providing and protecting individual rights”. 19 In a country
like India such compulsory registration is not important only for accumulating data but it
serves a bigger purpose by effective enforcement of existing legislations.

3.1. THE ROAD AHEAD

Now, since a considerable number of years have passed and state governments have not
entirely provided for a compulsory marriage registration mechanism, it’s time that a Central
legislation be pushed forward covering every citizen of India regardless of the personal laws,
religion and customs of individual. Such a legislation, which has also been provided in
various Law Commission reports is not for repealing or overshadowing any personal or
religious law but should make registration of marriages of all religions and customs
mandatory for the welfare of mass. Also to make the legislation more effective and inclusive
the Law Commission in its 270th report has recommended that “the process of registration be
made online as far as possible and to make the data available for universal tracing”. 20 One
argument extended for not having compulsory registration of marriages in India via. a central
legislation is that we have a vast and variety of religions and customs being practiced and
hence it is not practical to have a legislation in this regard. Undoubtedly, the said argument is
true that is tough to have such a legislation with a demographic condition such as that of
India but this argument cannot be held strong enough to overrule the benefits that are
19
“Civil Registration Systems”, available at: https://unstats.un.org/unsd/demographic/sources/civilreg/ (last
visited on February 25, 2019).
20
Para 7.5, Law Commission of India, “270th Report on Compulsory Registration of Marriages” (July, 2017).

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conjoined with the proposed legislation. As it has already been mentioned above that this
legislation is not meant to strike any personal law or customary practice but only to make
effective the existing laws. Hence, it is highly recommended to create awareness among
people and make such a proposal binding across the country. Many countries have enacted
legislations making registration of marriages compulsory such as South Africa, Pakistan,
Indonesia, Turkey and Bangladesh and now it is turn of India to take progressive steps in this
regard so that rights of its citizens are protected in an effective manner. Inspiration in this
regard can be drawn from the state of Goa which follows the Civil Registration Code, 1912
under which registration of marriages has to be initiated before the actual solemnisation of
marriage. It is quite evident that certain places in India are already having provisions for
compulsory registration and have been enforcing family law efficiently, which must be
followed, in my opinion, all over India as early as possible.

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 BIBLIOGRAPHY

Primary Sources:

1. The Constitution of India.

Statutes:
1. The Hindu Marriage Act, 1955.
2. The Special Marriage Act, 1954.
3. The Christian Marriage Act, 1872.
4. The Parsi Marriage and Divorce Act, 1936.
5. The Kazis Act, 1880.
6. The Bombay Registration of Marriages Act, 1953.
7. The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976.
8. The Himachal Pradesh Registration of Marriages Act, 1996.
9. The Andhra Pradesh Compulsory Registration of Marriages Act, 2002.
10. The Births, Deaths and Marriages Registration Act, 1886.
11. The Registration of Births and Deaths Act, 1969.

Conventions:
1. Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), 1979.

Cases:
1. Seema (SMT.) v. Ashwani Kumar, (2006) 2 SCC 578.
2. Kanagavalli v. Saroja, AIR 2002 Mad 73.
3. Baljit Kaur & Anr v. State of Punjab & Anr., (2008) 151 PLR 326
4. Najma v. Registrar General of Marriages & Anr, 2012 (1) KHC 655
5. Sushma w/o Hemantrao Bodas v. Malti w/o Madhukar Machile, 2009 (111) Bom LR
3974.

Secondary Sources:

Reports:
1. 205th Report, The 18th Law Commission of India, 2008.
2. 211th Report, The 18th Law Commission of India, 2008.
3. 270th Report, The 21st Law Commission of India, 2017.

Online Resources:
1. Manupatra
2. SCC online
3. Westlaw India

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4. “Problems Relating to NRI Marriages”, available at:
http://ncw.nic.in/pdffiles/nridodont.pdf.

5. “Civil Registration Systems”, available at:

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