Features: Magazine | Literary Review | Life | Metro Plus | Open Page | Education Plus | Book Review | Business | SciTech | Friday Review | Young World | Property Plus | Quest | Folio |

WOMEN AND THE LAW

Married, yet not married!

CHITRA NARAYAN

When a marriage has not been registered, it would be presumed that there was no marriage at all

In today's column we look at the recent judgment of the Supreme Court on registration of marriages. The Supreme Court, on 14.2.2006, directed that all marriages be made compulsorily registrable and directed all the State Governments and the Central Government to prepare rules and a law for the compulsory registration of marriages within a period of three months. These proposed rules are intended to cover all religions and communities. The Supreme Court has ruled that the consequence of non-registration would be that it would be presumed that there would be no marriage at all.

This order arose in the course of matrimonial proceedings where the Supreme Court noted that the very existence of marriage was being denied by persons, and the means of addressing this would be by directing compulsory registration of marriages. The question that arises in this context is whether this measure for registration of marriage would safeguard women or would only turn out to be another ground for the denial of the existence of a marital relationship by the husband?

What is the law relating to registration of marriages at present? The requirement of registration of a marriage varies amongst religions. Amongst Christians, Muslims and Parsis, the marriage is compulsorily registered by the religious authority on completion of the religious ceremonies under the personal law. The exception is the Hindu law, where the solemnisation of marriage is to be done according to the customs governing either spouse. The Hindu Marriage Act, 1956, does not require compulsory registration. The law, however, provides the option to register the marriage. Some states in India require the registration of such marriages compulsorily.

The other process is found in the Special Marriage Act, 1954, under which a marriage can be solemnised, which is mandatorily registered.

Provision for registration

Therefore, all marriage laws do have a provision for registration, either compulsorily or by way of an option. There is of course the secular law, which records the solemnisation of marriages, even if marriages are conducted attendant with religious ceremonies. Then why are all marriages not registered? On many considerations, each of which are compelling. Marriage relationships are founded on implicit trust, and this drives many decisions taken at this time. Also important is the personal and private element in a marriage. Hindu marriages, ritually, require certain ceremonies to be performed that complete the purposes of marriages.

In Muslim, Parsi and Christian marriages, the registration process is part of the ceremony. Marriages are conducted in the presence of family and friends, which is seen as an adequate safeguard against denial. Further, bureaucratic difficulties deter registration.

Several important rights have also accrued to women in recognition of the above factors. One is the recognition of maintenance for women living with men, even without evidence of a ceremonial marriage. There is also a statutory presumption of marriage where the persons live together for extended periods of time.

In this context, how does the requirement for compulsory registration help? It is important to note that this formal compulsory registration has to be done even in marriages in which registration is a part of the solemnities.

Registration provides a nominal advantage to women, in that it is an official record of the relationship. The National Commission of Women, which had filed an affidavit in this case, cited many reasons for compulsory registration, including prevention of child marriages, marriages without the consent of the parties, bigamy/polygamy, enabling married women to claim their right to live in the matrimonial house, maintenance and deterring men from deserting women after marriage. These issues are indeed serious and real. However, the mere requirement of registration cannot hope to tackle or deter them. Compulsory registration does not even address issues of consent or bigamy, where the processes do not contemplate verification or access to information. Persons intent on defeating the law, for instance through child marriages, sale of girls or polygamous marriages, are unlikely to register. While the intention is admirable, the measure suggested is reflexive. Presently, the process of registrations in India is an expensive, time consuming and harrowing process. The creation of a bureaucratic machinery to compel this court-driven measure would in no way address issues of consent, freedom to marry, or obligations arising out of a marital relationship.

In our vast and populous country, the requirement for registration is only a supportive measure that provides the establishment's recognition to a relationship. A more appropriate method would be individually addressing the issues confronting women in marriages while retaining the voluntary nature of registration. Its use can be encouraged by making it more simple and accessible to people, to enable them to use the limited advantages it provides.

(chitra.narayan@gmail.com)

Printer friendly page  
Send this article to Friends by E-Mail