CASE COMMENT ON SEEMA VS ASHWINI KUMAR AIR 2006 SC 1158. - BY Akshay Waman Fand
CASE COMMENT ON SEEMA VS
ASHWINI KUMAR AIR 2006 SC 1158.
AUTHOED BY –
AKSHAY
WAMAN FAND
Introduction
Since independence,
numerous initiatives have been taken to address the issue of gender inequality.
Reform initiatives taken so far have succeeded to a large extent, however,
child marriages, bigamy and gender violence continue to persist in our society,
despite legislation's prohibiting and penalizing such practices. Several
disputes are pending before the courts regarding the matrimonial status of the
parties. Women are often denied the status of wife due to the absence of a
record proving a valid marriage. The courts have time and again emphasized
making registration of marriage compulsory, to prevent denial of status to
women and to children born out of wedlock. Instances of marriage fraud have
also come to light in recent times. In the absence of compulsory registration,
women are duped into marrying without the performance of the conditions of a
valid marriage. This deprives women of societal recognition and legal security.
Such fraudulent marriages are especially on the rise among nonresident Indians.
Compulsory registration can serve as a means to ensure that the
conditions of a valid marriage have been performed. The Births, Deaths, and
Marriages Registration Act, of 1886 provided for voluntary registration of
births and deaths only for certain classes of people and also made a provision
for effective registration of marriages under the Indian Christian Marriages
Act, of 1872 and the Parsi Marriage and Divorce Act, 1936, While provisions for
registration exist under various laws- such as the Hindu Marriages Act, 1955,
the Special Marriages Act, 1954, the Parsi Marriages and Divorce Act, 1936 and
the Indian Christian Marriages Act, 1872, however, there is no provision that
provides for simply keeping a record of all marriages and is available to any
and every individual in the country regardless of religion, region or customs.
The Special Marriage Act 1954, laid down a procedure for registration
but the Act was primarily intended to enable couples to opt out of personal
laws, this did not, however, imply that the couple has opted out of religion.
It simply meant that religion has no relevance in the registration of a
marriage under this Act. In 2006, the Supreme Court in Seema v. Ashwani Kumar
& ors.6 observed that marriages of all persons who are citizens of India
belonging to various religions should be registered compulsorily in their
respective States, where the marriage is solemnized. Further, as and when the
Central Government enacts a comprehensive Statute, the same shall be placed
before the Court for scrutiny. The judgment also referred to the Bill produced
by the National Commission of Women.
Background
The Case arises
out of a Petition filed in Haryana District Court regarding the issue of the
registration of marriage which was a matter of the States. Numerous harassment
in matrimonial & maintenance cases due to consequences of non-registration
of marriages in some states took place. The decision was taken by the court and
directions were sent to the state to compulsorily register marriages and report
back with the procedure for registration in 3 months. The Hindu Law empowers
the State Government to draft rules for the registration of marriages. Under
Section 8 (2) of the Hindu Marriage Act, 1955, if the State Government in its
opinion that such registration should be compulsory. The National Commission
for Women has specified that non-registration of marriages affects women. If
the marriage is registered it will provide evidence of the marriage having
taken place and would also provide a presumption of the marriage having taken
place.
The compulsory Registration of Marriage can help in reducing the issue
of Child Marriage which was prevalent at that time. It also provides evidence
in the matters of custody of children, and the right of children born. The
Supreme Court directs several states to make rules regarding the registration
of marriage as per the following guidelines:"Procedure for registration
should be reported by respective states within 3 months from the date of judgment.
The officer appointed under the said Rules of the
States shall be duly authorized to register the marriages. The age and marital
status shall be clearly stated and consequences of non-registration of
marriages shall also be provided in the said Rules to fulfill the purpose of
this court.
When the Central Government enacts a comprehensive
statute, the same shall be placed before this Court for inspection.Authorized
persons for various States and Union Territories shall ensure that the
directions given herein are carried out immediately."
United Nations
has recognized the importance of creating a record of vital events such as
birth, death, and marriage. The creation of such a civil registry for citizens
serves the purpose of creating a legal document that could be used to protect
and establish the rights of individuals
ANALYSIS
In India, not recognizing unregistered
marriage as valid would be highly unsuitable, as many marriages commonly take
place informally in gatherings of relatives, with or without the presence of
priests, or in any other customary manner which must also be recognized as
valid. It was for this reason that, like various other countries, India also
expressed its reservation even while ratifying the Convention of 1993.
Customary practices are so prolific and personal law systems also prevail
making it necessary for the law to accept cultural and regional diversity.
Therefore the idea is to encourage legal education among the people so that
these ceremonies can be preceded or succeeded by registration of the event.
An unregistered
marriage is not to be treated as 'void' but simply in an attempt to encourage
registration, there can be small penalties attached to non-registration. This
would help in a circumstance when the spouse has been left destitute and a
second marriage has been contracted by the other spouse, the proof of the first
marriage will be indisputable and not permit a spouse to abandon his family and
maintenance obligations, etc. It is worth noting that there are various laws
governing marriage and divorce in India, the Bill seeking Compulsory Registration
of Marriages is not intended to challenge or interfere with any of these
prevailing systems of personal laws but to simply ensure that marriages under
all customs and religions can be registered.
The Supreme
Court and the High Courts have time and again emphasized the need to make the
registration of marriages compulsory. The most notable decision came in Seema
v. Ashwani Kumar15 while dealing with the matter related to issue(s) of
marriages observed as under: " we are of the view that marriages of all
persons who are citizens of India belonging to various religions should be made
compulsorily registrable in their respective States, where the marriage is
solemnized." In view of the developments that have taken place in the
States and Union territories with respect to the legislation on Compulsory
Marriage Registration, the core question for consideration arises is as to
whether there is a need for Central Legislation on the subject. And if so, then
the next question arises as to whether to pursue amendments in the Registration
of Births and Deaths Act, 1969 as per the Registration of Births and Deaths
(Amendment) Bill, 2015 or to consider separate standalone legislation to
provide for compulsory registration of marriages is required.
Before providing
directions for the registration of marriages in Seema v. Ashwani Kumar the
Supreme Court noted that such a law would be of critical importance to various
issues such as (a) Prevention of child marriages and ensuring minimum age of
marriage. (b) Prevention of marriages without the consent of the parties. (c)
Check bigamy/polygamy (d) Enabling married women to claim their right to live
in the matrimonial house, maintenance, etc. (e) Enabling widows to claim their
inheritance rights, other benefits, and privileges which they are entitled to
after the death of their husband. (f) Deterring men from deserting women after
marriage. (g) Deterring parents/guardians from indulging in the trafficking of
women to any person including a foreigner, under the garb of marriage.
Conclusion:
The above-stated
case deals with the registration of marriages in India. Several states have no
legal rules regarding the registration of marriages. Non-registration of
marriages causes several consequences in the form of harassment of women and
child marriage cases. Referring to these issues, the Apex court upheld the
mandatory registration of marriages of all the religions in their respective
States and issued certain guidelines for making rules for such Registration.
The Registrar who is responsible for the
registration of births and deaths shall be responsible for the registration of
marriages as well. Village Panchayats, local civil bodies, and municipalities
should create awareness so as to get register all marriages with the local
administration compulsorily.
Further,
producing a marriage certificate should be made mandatory when anyone writes
the name of a spouse in any application; for getting any benefit on behalf of
husband or wife; for making an application to government departments; for
getting benefits of any welfare schemes like the agricultural loan, education
loan, etc. Also, a unified database that consists of birth, marriage, and death
records would allow easy tracing of records.[1]