In 2006, the Supreme Court issued an order directing state governments to create regulations requiring marriages to be registered as the court acknowledged the importance of keeping a record of all marriages performed under various personal laws.
The Aam Aadmi Party-led Delhi government, however, designed the rules for marriage registration in a way that excluded Muslim personal law from its scope. In spite of All India Muslim Personal Law Board’s representation to the concerned authorities and the Delhi government’s own submission before the Delhi High Court, the said rules were not amended.
Because of this subtle discrimination, if a Muslim couple wants their marriage and inheritance to be under Muslim Personal Law, they may be in for a harsh shock when they register their marriage in Delhi. The Delhi government’s order requiring weddings to be registered formally effectively compels Muslims to give up their right to personal law.
Saaduzzaman, a lawyer, wrote in The Wire: “The Delhi government is registering marriages of non-Hindus under the Special Marriage Act, 1954 (SMA). On account of certain provisions of the SMA, Muslims registering their marriages in Delhi will no longer be governed by Muslim personal law on issues of marriage, divorce and inheritance.
“Alarmingly, it appears that a lot of Muslim couples registering their marriage in Delhi are unaware of the consequences of such a registration. Even though the effects of such a policy are not immediately felt, they will become crucial when couples who have registered their marriage under this policy decide to get a divorce or the inheritance of their property comes into question.”
It should be mentioned that in the case of Smt. Seema vs. Ashwani Kumar [TP (C) 291/2005] in 2006],the Supreme Court ordered state governments to create regulations for the mandatory registration of marriages.
As per the Court directive, the Delhi government passed the Delhi (Compulsory Registration of Marriages) Order, 2014. According to the Order, all marriages performed in Delhi must be registered within six months or risk a Rs. 1,000 punishment. Despite the small fee, not registering a marriage prohibits a married couple from acquiring a marriage certificate, which is a vital document required by various governmental organisations as proof of marriage.
Saaduzzaman further pointed out the Delhi Order itself does not specify any particular law under which to register marriages which have been performed under personal laws. It merely requires that all marriages performed in Delhi be registered with the designated marriage officers appointed by the government. This is where the Delhi government’s arbitrary practice has served to deprive non-Hindus, especially Muslims, of their personal law.
“The Delhi government’s internal practice, which appears to be arbitrary and without any legal basis, is to register marriages only under the SMA where one or both the parties to a marriage are non-Hindus. On the other hand, in cases of marriage between Hindus or Sikhs, they have an option to register their marriage under their personal law or the SMA. This is evidenced by the following screenshots of the online form for marriage registration on the Delhi government’s online portal:
“This is also confirmed by the FAQ page on Delhi government’s website, which clearly states that marriages that are already solemnised will be registered either under the Hindu Marriage Act or the Special Marriage Act.”
It also be noted that marriages performed in accordance with diverse personal laws are accepted as lawful unions under Indian law. However, historically, these unions were not recorded with any government agency, and the authorities had no record of any marriages consummated in accordance with other personal laws.
The registration of marriage under the SMA has adverse effects on one’s personal law.
Saaduzzaman says marriages performed under SMA are simply referred to as court marriages and the couple loses their personal laws.
In this regard, the High Court of Delhi in the case of M vs. A explained this position of law under SMA as follows:
10.4. The Special Marriage Act provides an option of turning an existing religious marriage solemnised in any other form under any other law into a civil marriage by registering it under its provisions, provided that it is in accord with the condition for marriage laid down under the Act. This provision of subsequent registration enables parties to avail secular and uniform remedies despite the solemnisation of marriage through performance of religious ceremonies under one’s own personal laws. This aids them in overcoming the constraints or discrimination faced in their own personal laws.
Indeed, the SMA has a voluntary opt-in clause to allow parties to choose to be governed by non-religious personal law provisions. But this is supposed to be voluntary. On the other hand, the Delhi government is depriving non-Hindus, especially Muslims, of the option to be governed by law of their choice. Such a choice is freely available to Hindus and Sikhs.
“In effect, a marriage performed under a personal law, say a nikah, once registered under the SMA, will be treated as a court marriage and will not be governed by Muslim personal law. This will also mean that provisions of divorce under Muslim Personal Law, including various forms of talaq, will not be applicable to such a couple. They will necessarily need to file for divorce under provisions of the SMA.”
He further underlines that “the SMA further creates a distinction for Muslims in case of law related to inheritance. It states that for any person whose marriage is solemnised under the SMA, their property will be succeeded to as per the Indian Succession Act, 1925 – except where both the parties are Hindus, Buddhists, Sikhs and Jains. Thus, if two Hindus register their marriage under the SMA, they will continue to be governed by the applicable personal law with regard to inheritance. Meanwhile, inheritance in cases of Parsis and Christians is already governed under the Indian Succession Act. Therefore, the only case where the parties end up having to relinquish their right of personal inheritance law is a Muslim couple that registers their marriage under the SMA.”
The All India Muslim Personal Law Board, which came into existence with the avowed aim of protecting the 1937 Sharia Application Act, has duly taken note of the Delhi government registration order. It contends that the Muslim personal law on inheritance is significantly different from the Indian Succession Act. For example, in cases of Muslim succession, a person cannot grant his heirs more than 1/3rd of his assets through a will, whereas no such restriction exists under the Indian Succession Act. Such crucial differences in these laws will significantly affect people’s ability to plan their succession.
Since this policy was not included in the marriage decree itself, the Delhi government’s entire strategy is quite worrisome. By minimally altering the registration form for marriage registration, it has been quietly implemented. Additionally, because the Indian Succession Act already regulates the inheritance laws of Parsis and Christians, the regulation won’t have a significant impact on them. They’ll only be impacted to the extent that their local divorce laws no longer apply.
Speaking with Radiance, Muslim Board Executive Member Dr. S.Q.R. Ilyas said immediately following the announcement of the compulsory marriage registration, he wrote letters to the Delhi Government, the LG, and Mr. Manish Sisodia, the then-Deputy Chief Minister, on behalf of the Muslim Board. Unfortunately, the modification was not done because this letter was passed back and forth between departments.
When the union government issued this law requiring marriage registration, it was obvious that every state government would need to record marriages performed in accordance with their individual personal laws. All of the state governments made the necessary provisions, but the Delhi state government was unable to. There are just two of them. Either the Hindu Marriage Act or the Special Marriage Act must be used to register them while Muslim marriages in India are governed by Shariat Application Act, said Dr Ilyas.
Casting aspersion on the Kejriwal government, Supreme Court lawyer SarimNaved told Radiance that it’s not a big deal for the ruling Aam Aadmi party which has a brute majority in the Delhi assembly to amend the law. He further noted that although the Delhi government had promised to change the policy in a filing to the Delhi High Court, it has yet to follow through on that promise.
It is to be mentioned here that an official marriage certificate is required for overseas travel, especially to western countries.
Another lawyer, Feroz Khan Ghazi said he came to learn that many Muslim couples opted for registration under SMA to get the necessary marriage certificate. He said he sent a proposal to All India Muslim Personal Law Board way back 2003 regarding the registration of marriage as Qazi’s nikhanamaa is not a valid document for this purpose.
On the Delhi issue, Saaduzzaman says the Delhi government will need to come up with a creative legislative solution to ensure that married couples in Delhi who have been forced to register their marriage under the SMA can opt back to the choice of their personal law. The government is duty bound to ensure that this discriminatory practice is stopped and the effects of the same are rectified at the earliest.
Dr. Ilyas says, “We’ll make an effort to meet Delhi Chief Minister Arvind Kejriwal soon in the hopes that he would make the required modification; if not, we will go to court.”