Seema v. Ashwani Kumar (2006)

Every protective provision in Unit 4 turns on a fact that is hard to prove: age. A child marriage can be prosecuted, avoided, or restrained only if someone can show how old the parties were, and in most of India there was no official record of a marriage at all. This is the decision in which the Supreme Court directed that marriages of all citizens, of every religion, be made compulsorily registrable, and it did so with the prevention of child marriage expressly among its reasons.

It is therefore the case to cite when an answer asks what more the law should do about child marriage — and it is also the case that puts the National Commission for Women to work on the paper, since the direction rests substantially on the Commission's affidavit.

The question arose while a transfer petition was being heard. The Court noted with concern that in a large number of cases unscrupulous persons deny the existence of a marriage, taking advantage of the fact that in most States there is no official record of it. Notice was issued to the States and Union Territories, and counsel were requested to assist as amici in framing guidelines. Without exception, the States and Union Territories said that registration of marriages is highly desirable.

The Court then surveyed the law. Registration was compulsory under only four State statutes — those applicable to Maharashtra and Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh — and voluntary registration of Muslim marriages was provided for in a few others. Registration is compulsory under the Indian Christian Marriage Act 1872 and the Parsi Marriage and Divorce Act 1936, and every marriage under the Special Marriage Act 1954, which applies to citizens irrespective of religion, is registered by the Marriage Officer. Under s. 8 of the Hindu Marriage Act it is left to the parties whether to register; the State Government may make registration compulsory, the contravention being punishable with fine; and the Act declares that the validity of a marriage is in no way affected by the omission to make the entry.

On the international side, India signed CEDAW on 30 July 1980 and ratified it on 9 July 1993, with two declaratory statements and a reservation — the reservation being to the clause requiring compulsory registration of marriages, India agreeing in principle that such registration is highly desirable but describing it as not practical in a country of its size, variety of customs and religions and levels of literacy.

The National Commission for Women stated that non-registration affects women most, and that a law on compulsory registration would be of critical importance for the prevention of child marriages and ensuring the minimum age of marriage, the prevention of marriages without the parties' consent, checking illegal bigamy and polygamy, enabling married women to claim residence and maintenance, enabling widows to claim inheritance, deterring men from deserting women after marriage, and deterring parents or guardians from selling daughters or young girls under the garb of marriage.

Marriages of all persons who are citizens of India, belonging to the various religions, should be made compulsorily registrable in their respective States, where the marriage is solemnised. The Court directed the States and the Central Government accordingly:

1. The procedure for registration was to be notified by each State within three months, by amending existing rules or framing new ones, after inviting public objections for a month and then notifying the rules into force.
2. The officer appointed under those rules must be duly authorised to register marriages, and the age and marital status (unmarried, divorcee) must be clearly stated; the rules must also provide for the consequences of non-registration and of filing a false declaration.
3. As and when the Central Government enacts a comprehensive statute, it is to be placed before the Court for scrutiny.

1. Competence first. Marriage and divorce, infants and minors, adoption, succession and joint family matters are Entry 5 of the Concurrent List, and vital statistics including registration of births and deaths are Entry 30; registration of marriages comes within the expression vital statistics.
2. Identify the mischief. Where no record is kept, the fact of the marriage itself can be denied, and in most such cases it is the woman who suffers.
3. State the evidentiary value precisely. Registration is not itself proof of a valid marriage and is not determinative of validity — the Hindu Marriage Act says as much — but it provides evidence that the marriage took place and a rebuttable presumption to that effect, and it has great evidentiary value on the custody of children, the rights of children born of the marriage, and the age of the parties. The legislative intent behind s. 8 appears from its own words, that it exists for the purpose of facilitating the proof of Hindu marriages.
4. Draw the consequence of non-registration. A person whose marriage is not registered is denied the presumption that registration would have given.

It opens the reform paragraph of any child-marriage answer: the 2006 Act punishes and avoids, but its enforcement depends on proof of age, and compulsory registration is the measure that supplies it. Pair it with the observation of a later Full Bench that registration of marriages has still not been made compulsory everywhere, and that compulsory registration, by requiring the ages to be recorded, would discourage parents from marrying off minor children.

It disposes of the assumption that the absence of a record is a neutral fact: the Court's finding is that it operates against women and children.

It does not decide that an unregistered marriage is invalid — the opposite is expressly preserved — and it does not itself enact a law; it directs the States to frame rules and leaves a comprehensive statute to Parliament. Note also, for the international-instruments head, that India's reservation to the CEDAW clause on compulsory registration stands, so the direction rests on the Court's own reasoning rather than on a treaty obligation India has accepted.