Smt. Seema vs Ashwani Kumar

Case Analysis, Constitutional Law Cases

Smt. Seema vs Ashwani Kumar

July 7, 2023

By Ashmit Sen[1]

In the Supreme Court of India

NAME OF THE CASE	Smt. Seema vs Ashwani Kumar
CITATION	Transfer Petition (civil) 291 of 2005
DATE OF THE CASE	14^th February, 2006
PETITIONER	Smt. Seema
RESPONDENT	Ashwani Kumar
BENCH/JUDGE	Hon’ble Justice Arijit Pasayat & Hon’ble Justice S.H. Kapadia
STATUTES INVOLVED	The Constitution of India, The Hindu Marriage Act, The Special Marriage Act, The Registration Act, The Foreign Marriage Act, The Divorce Act, The Indian Christian Marriage Act, The Bombay Registration of Marriages Act (applicable to Maharashtra and Gujarat), The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, The Himachal Pradesh Registration of Marriages Act, The Andhra Pradesh Compulsory Registration of Marriages Act, The Assam Moslem Marriages and Divorce Registration Act, The Orissa Muhammadan Marriages and Divorce Registration Act, The Bengal Muhammadan Marriages and Divorce Registration Act
IMPORTANT SECTIONS/ARTICLES	The Constitution of India: Article – 16(2) The Hindu Marriage Act: Sections – 3, 5, 8

Abstract

The present case is a landmark case where the Supreme Court upheld the mandatory registration of marriages of all the religion in their respective States. The case was originally a petition between Smt. Seema (Petitioner) and Ashwani Kumar (Respondent) which was first filed before the Haryana District Court in 2005 due to their constant fights and arguments which was then sent to the Supreme Court as a transfer petition with the concern that a large number of cases had been taking place where the existence of marriage was being denied and people were taking advantage of the situation that most of the States did not have any official record of the marriages. The Supreme Court thus, was to decide on the case with respect to the main question that whether registration of marriages should be made compulsory or not and the Court had decided the question in the affirmative.

Introduction

Marriage is a social practice through which two people and their families unite which gives rise to conjugal rights. The word conjugal means rights which arise between husband and wife after marriage. Marriage is one of the oldest sacraments in the society. It is a universal social institution which brings men and women into family life where they are socially permitted to have children. According to Gillin and Gillin, “Marriage is a socially approved way of establishing a family of procreation.”^[2] The Merriam-Webster Dictionary defines Marriage as “the state of being united as spouses in a consensual and contractual relationship recognized by law.”^[3]

The essential elements of a valid Hindu Marriage have been given in Section 5 of Hindu Marriage Act, 1955 which states that a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled ^[4], namely: –

1. neither party has a spouse living at the time of the marriage;

2. at the time of the marriage, neither party –

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

3. the bridegroom has completed the age of twenty-one years and the bride has completed the age ofeighteen years at the time of the marriage;

4. the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

A marriage registration certificate is an official testimony which states that two people are married. Merriam-Webster Dictionary defines a marriage certificate as “a legal document that shows that a marriage has taken place.”[5] A marriage which has already been solemnised can be registered either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs, the marriage is registered under the Special Marriage Act, 1954.

In the present case, the petition was taken up by the Supreme Court to decide whether the registration of marriages should be made compulsory or not.

Facts of the case

The original petition which was between Smt. Seema (Petitioner) and Ashwani Kumar (Respondent) was first filed before the Haryana District Court in 2005 due to their constant fights and arguments. The matter was then pending in the Court of Additional District Judge Delhi, when an interim order dated 15th April 2005 was passed, putting a stay on the proceedings and the petition was transferred to the Supreme Court with the concern that a large number of cases had been taking place where the existence of marriage was being denied and people were taking advantage of the situation that most of the States did not have any official record of the marriages. Notice was therefore issued to various States and Union Territories and learned Solicitor General and Mr. Ranjit Kumar, learned senior counsel were requested to act as Amicus Curiae to assist the Court in laying down guidelines in the matter of registration of marriages and on the basis of that notice, all the States and the Union Territories indicated their stand to the effect that registration of marriages was highly desirable. The case was thus to be decided by the Supreme Court on the main question that whether the registration of marriages should be made mandatory or not to prevent such abuse of loopholes in the legal system.

Issues raised before the court

Whether the registration of marriage should be a mandatory provision or not and whether such mandate is constitutional or not?

Related Provisions

The Constitution of India, 1950:

Article 16(2) – “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.”[6]

The Hindu Marriage Act, 1955:

Section 3 – “Definitions. – In this Act, unless the context otherwise requires, –

(a) the expressions ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and provided further that in the case of a rule applicable only to a family it has not been discontinued by the family[7];

(b) ‘district court’ means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act[8];

(c) ‘full blood’ and ‘half-blood’ – two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half-blood when they are descended from a common ancestor but by different wives[9];

(d) ‘uterine blood’ – two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands[10];

Explanation. – In clauses (c) and (d), ‘ancestor’ includes the father and ‘ancestress’ the mother;

(e) ‘prescribed’ means prescribed by rules made under this Act[11];

(f) (i) ‘sapinda relationship’ – with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation[12];

(ii) two persons are said to be ‘sapindas’ of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them[13];

(g) ‘degrees of prohibited relationship’ – two persons are said to be within the degrees of prohibited relationship –

(i) if one is a lineal ascendant of the other[14]; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other[15]; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other[16]; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters[17];

Explanation. – For the purposes of clauses (f) and (g), relationship includes –

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood;

and all terms of relationship in those clauses shall be construed accordingly.”

Section 5 – “Conditions for a Hindu marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: –

(i) neither party has a spouse living at the time of the marriage^[18];

[(ii) at the time of the marriage, neither party –

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) the bridegroom has completed the age of[twenty-one years] and the bride, the age of[eighteen years] at the time of the marriage^[20];

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two^[21];

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.^[22]”

Section 8 – “Registration of Hindu marriages. –

(1)For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.[23]

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.[24]

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.[25]

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.[26]

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.[27]”

Judgement

The Supreme Court stated that by compiling relevant legislations in respect of registration of marriages, it appeared that there were only four Statutes which provided for compulsory registration of marriages which were : (1) The Bombay Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat), (2) The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976, (3) The Himachal Pradesh Registration of Marriages Act, 1996, and (4) The Andhra Pradesh Compulsory Registration of Marriages Act, 2002. Except these four statutes, registration of marriages was not compulsory in any of the other States.

The Court also pointed out that provisions had been made for voluntary registration of Muslim marriages in Assam, Orissa and West Bengal through the “Assam Moslem Marriages and Divorce Registration Act, 1935,” the “Orissa Muhammadan Marriages and Divorce Registration Act, 1949” and the “Bengal Muhammadan Marriages and Divorce Registration Act, 1876” respectively. In Uttar Pradesh, the State Government had also announced a policy providing for compulsory registration of marriages by the Panchayats and maintenance of its records relating to births and deaths. The Court also took notice that rules regarding the registration of marriages with regards to Hindu Marriages and Muslim Marriages had not been made and enforced in Jammu and Kashmir.

The Court then took notice of the certain statutes relating to marriage existing in India – under the Special Marriage Act, 1954 which applied to Indian citizens irrespective of their religion, each marriage was to be registered by the Marriage Officer specially appointed for the purpose while the registration of marriages was compulsory under the Indian Christian Marriage Act, 1872 where the entries were made in the marriage register of the concerned Church soon after the marriage ceremony along with the signatures of bride and bridegroom, the officiating priest and the witnesses. The Parsi Marriage and Divorce Act, 1936 made registration of marriages compulsory but under Section 8 of the Hindu Marriage Act, 1955, it was up to the discretion of the contracting parties to either solemnize the marriage before the Sub-Registrar or register it after performing the marriage ceremony in conformity with the customary beliefs. However, the Act made it clear that the validity of the marriage would in no way be affected by omission to make the entry in the register. The Hindu Marriage Act enabled the State Government to make rules with regard to the registration of marriages and under Sub-section (2) of Section 8, it was stated that if the State Government was of the opinion that such registration should be made compulsory, then the State Government could provide for such measures and in the event, any person contravening any rule made in this regard would be punishable with fine. The Court also took notice that the vital statistics including registration of deaths and births was covered by Entry 30, List III of Schedule VII and the registration of marriages would come within the ambit of the expression ‘vital statistics’.

The Court then examined the affidavit filed on behalf of the National Commission for Women which indicated that the Commission was of the opinion that non-registration of marriages affected women the most and hence, if registration of marriages would be made compulsory, then it would help in solving important women-related issues such as –

“(a) prevention of child marriages and to ensure minimum age of marriage.

(b) prevention of marriages without the consent of the parties.

(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.

(e) Enabling widows to claim their inheritance rights and 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 selling daughters/young girls to any person including a foreigner, under the garb of marriage.”[28]

After studying the provisions and examining the affidavits filed, the Supreme Court was of the opinion that the disputes concerning solemnization of marriages between two persons could be greatly avoided if record of such marriages were kept. The Court agreed with the National Commission for Women that non-registration of marriages affected women the most. Registration of marriages would also provide evidence of the marriage and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself could not be a proof of valid marriage but it would have a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage was registered and the age of parties to the marriage. The Court was of the opinion that it would be in the interest of the society if marriages were made compulsorily registrable and as a natural consequence, the effect of non-registration of marriages would be that the presumption which was available from registration of marriages would be denied to a person whose marriage was not registered.

Therefore, the Court was of the view that marriages of all persons who were citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage was solemnized and the Court gave directions to the States and the Central Government to take the following steps:

“(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.

Needless to add that the object of the said Rules shall be to carry out the directions of this Court.

(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.”[29]

The Supreme Court then directed the Registry to handover a copy of the order to the learned Solicitor General for necessary follow-up action and the Court recorded their appreciation for the valuable assistance rendered by Mr. G.E. Vahanvati, the Solicitor General and Mr. Ranjeet Kumar, senior advocate, who appeared as amicus curiae.

Conclusion

The Supreme Court through its judgement in the present case, had set a landmark when it held that it was of the view that marriages of all persons who were citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage was solemnized. In my view, I agree with the court’s opinion when it agreed with the view presented by the National Commission for Women that non-registration of marriages affect women the most and if such registration of marriages were to be made compulsory, it would not only help a lot of aggrieved women who face such circumstances where the husband had denied the validity of their marriage due to the absence of any official record of such marriage, but would also be of great evidentiary value in in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage was registered and the age of parties to the marriage, which has also been stated out by the Supreme Court in this case and thereby the Supreme Court’s decision of making registration of marriages compulsory is of such great importance and it will surely help in preventing a lot of people to try and abuse the loopholes of the legal system in India.

[1] 4^th Semester Student at St. Xavier’s University, Kolkata.

[2] Navendu K. Thakur, An Introduction to Sociology, Page 141, 2^nd Edition, 2016.

[3] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/marriage#:~:text=Kids%20Definition-,marriage,relation%20of%20married%20persons%20%3A%20wedlock (Last visited on June 28, 2023).

[4] Dr. Paras Diwan, Family Law, Page 42, 12^th Edition, 2021.

[5] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/marriage%20certificate (Last Visited on June 29, 2023).

[6] The Constitution of India, 1950, Art. 16(2).

[7] See The Hindu Marriage Act, 1955, Sec. 3(a).

[8] See The Hindu Marriage Act, 1955, Sec. 3(b).

[9] See The Hindu Marriage Act, 1955, Sec. 3(c).

[10] See The Hindu Marriage Act, 1955, Sec. 3(d).

[11] See The Hindu Marriage Act, 1955, Sec. 3(e).

[12] See The Hindu Marriage Act, 1955, Sec. 3(f)(i).