By Mass L. Usuf –

This column is in furtherance to the overview titled, ‘MMDA Claims misleading, exaggerated or reasonable’ (CT 31/07/2019).

Many issues had been highlighted for reforms in the Justice Saleem Marsoof Committee Report which unfortunately, was not unanimous. There was another report obviously, from the dissenting members of the Committee. The reform efforts have been blowing hot and cold since then with the prospect of reforms becoming elusive.  

In order to facilitate a way forward, there is a need to chart a conciliatory path which can satisfy at least to a significant extent the competing proposals. This study aims to provide that path and has identified the several issues which lacks consensus. The first one of such areas will be dealt with in this column namely, ‘Registration of marriage and divorce’ under Section 16 and 17 of the Muslim Marriage and Divorce Act (MMDA) of 1951. The two parties are called Group A and Group B.

Disagreement:

Group A, states that (1) marriage solemnised according to Islamic religious practise which is called ‘Nikah’ and the registration of marriages under the MMDA must be made mandatory. The effect of it is that a marriage which is not registered will be declared invalid.  (2) In other words, even a marriage that has gone through a valid Nikah process but not registered will be made invalid.

Group B, states that it is not acceptable to declare a religiously solemnised marriage (Nikah) as invalid just because it has not been registered.

Analysing established views:

1)  Marriage registration not mandatory

a) Legal principles: Based on the principle of in favorem matrimonii, (in favour of marriage), non-registration does not invalidate a marriage. This principle favours that a court should attempt to uphold the validity of a marriage. The principle of marriage validation favorem matrimonii applies almost universally.  The presumption of a valid marriage is important because of the many legal rights and obligations that flow from marital status.

b) Judicial precedents: A Full Bench of the Supreme Court in Valliammi vs. Annammai ((1900) 4 NLR 8) unanimously held that failure to register a marriage was not fatal to its validity.

BONSER, C.J.— For my part I am unable to agree with the proposition that there can be no lawful marriage unless that marriage be registered under the Ordinance. That was the law under the Ordinance of 1847, which expressly provided that all marriages should be invalid if not registered. That was found to be a burden greater than the people could bear, and in 1863 the Ordinance was re-enacted in substance with the omission of this disqualifying provision.

In Thiagaraja V. Kurukal Schneider J. said, “The reason why customary marriages are recognised is that the Ordinance does not render registration or solemnisation according to the provisions of the Ordinance compulsory.” (1923: 25 NLR 89).

c) Statutory history: To have rigid laws making registration compulsory had not been helpful. Earlier Regulation No. 9 of 1822 made registration compulsory for validity.  Despite this law non-registered marriages continued to take place and the courts had to recognised such customary or solemnised marriages.  Then by way of reforms the 1847 Ordinance provided that the lack of registration should not render a marriage invalid. Again, by Ordinance No. 2 of 1895 registration was made a requirement for validity.  This Section was repealed by Ordinance No. 19 of 1896.   Later, when reforms were made in the present General Marriage Registration Ordinance (GMRO) of 1907, they removed the compulsory requirement of registration for a marriage to be held valid.  Repealing the earlier requirement of registration clearly indicates the intention of the legislature not to make registration a requisite for the validity of a marriage. 

 2)  Evidence from comparative law

a) In Pakistan, the Federal Shariat Court in the case of Allah Rakha v Federation of Pakistan, PLJ 2000 (36), held:

“Non-registration of Nikah under Section 5 of the Muslim Family Laws Ordinance, 1961 as held by this Court in the cases……… does not invalidate marriage/Nikah itself merely on account of non-registration of Nikah, if otherwise Nikah has been performed in accordance with the requirements of Islamic Shariah.” 

b) In Bangladesh, the non-compliance of registration formalities does not make the marriage invalid.  Excerpts from the case of Abdullah Vs. Rokeya Khatoon (1969) 21 DLR 213 state that the solemnization of marriage if validly effected might not be affected for non-registration of the marriage. The registration certificate of marriage is not a document to validate the marriage rather it ensures rights that may accrues after marriage as an evidence. A marriage never vitiates or becomes illegal for non-registration.

c) In Malaysia, the legal effect of registration is seen under Section 34 of the Law Reform (Marriage and Divorce) Act 1976.  It states that nothing in this Act or the rules made thereunder shall be construed to render valid or invalid any marriage which otherwise is invalid or valid merely by reason of its having been or not having been registered.

d) In India, under the Hindu Marriage Act, 1955 Section 8 (5) it states that 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.

3) Examining Present MMDA

According to Section 16 of the Act, which is the main provision with regard to registration:

a) A marriage which is solemnised according to the Islamic practise, called the ‘Nikah’, is held valid.

b) Non-registration of a solemnised marriage does not render the marriage invalid.

Other Sections which are directly relevant relating to registration of marriages and divorces are in Sections 17 and 29 (1) of the Act.  

4) Analysing Registration

Many have the misunderstanding that registration of marriage is not provided for in the MMDA. It is important to note that the present MMDA has already widely provided for the registration of marriages, under Section 17.  In fact, Section 17 has seven sub-sections and sub-section (1) states as follows:

“Save as otherwise hereinafter expressly provided, every marriage contracted between Muslims after the commencement of this Act shall be registered, as hereinafter provided, immediately upon the conclusion of the Nikah ceremony connected therewith.”

a) This Section not only provides for registration but also clearly states that such registration should be done ‘immediately’ upon the conclusion of the Nikah ceremony.

b) It also imposes a duty on the following persons to cause the marriage to be registered (1) the bridegroom (2) the guardian (Wali) of the bride (3) the person who conducted the Nikah ceremony.

c) The Section further provides that the persons mentioned above can call upon the Registrar to register the marriage.

d) There is also provision to get the registration done through the District Registrar in case the registrar fails to register.

e) Although, Section 17 (1) provides for a marriage to be registered, it does not state that non-registration would invalidate the marriage. In other words, it has not made registration a mandatory requirement.

f) Therefore, this Section is in harmony with the various ways elucidated above in relation to acknowledging a marriage as valid.

 5) Social problem

An area of confusion is the difference between (1) a marriage not registered intentionally and (2) a marriage not registered unintentionally.  It is a commonly known fact that all marriages whether Muslim or not, go through the customary ceremonies followed by registration and a public celebration. This is so because marriage is a special occasion. Very, very rarely there are circumstances where none of these take place except the solemnisation.  Since there is no registration of the marriage in this instance, there is the possibility for corrupt men to exploit women by marrying and abandoning them. Further, non-registration makes transacting with government institutions etc. inconvenience.  

This situation is not only a Muslim issue but a common issue. It can arise even under the General Marriage Registration Ordinance. The interesting case of Sediris Vs. Rosalin (1977) 78 NLR 547 can be cited as an example where there was neither registration under the General Marriage Ordinance nor even a ceremonial solemnisation.  Andiris Appu kept Dingihamy, who was of an inferior caste, as a mistress only. However, in order to give validity to the marriage, the Court relied on the presumption of marriage by evidence of habit and repute.

Though such cases are proportionately very insignificant in numbers, the remedy for such unscrupulous behaviour has to be found in the other areas of the law, both civil and criminal.  The undue obsession linked to the MMDA has clouded rational thinking.  Consequently, the outlook is narrowed only to the MMDA. Thus, a solution which can be found in the other areas of the law is being sought within the MMDA.  This is not how the legal system works.  For example, when a person is killed the criminal law is activated through the Penal Code.  Later civil action can be separately filed for loss caused due to the death of the person.  One does not call to reform the Penal Code because it does not have provisions to claim damages for negligence. 

5) Religious requirement

On the other hand, no Muslim can question the validity of a marriage solemnised with the Nikah ceremony. Therefore, Section 16 gives validity to a solemnised wedding even if it had not been registered.  This position is not contrary to the universal principle of in favorem matrimonii, (in favour of marriage).

6)  Conflict of Laws

To make registration mandatory for a valid marriage, as demanded by Group A, will lead to several unnecessary complications. There may be a conflict between mainstream law and the Muslim law. Some illustrations, if registration is made mandatory for validity, are:

a) the solemnisation ceremony (Nikah) will not be recognised under the MMDA Statute but as Muslims the religion will recognise it as valid.

b) because the marriage has not been registered it will be invalid. The children born out of an invalid marriage automatically will be – illegitimate under the MMDA Statue but under their religion they will be legitimate. 

c) the man and woman will be living in fornication under the Statute but under Muslim law, they will be considered husband and wife.

d) The woman and the children will be placed in a seriously helpless position as she will not be able to claim maintenance for herself and the children, since there is no valid marriage under the Statute. Under Muslim law as Nikah is proof of a valid marriage, she will be entitled for maintenance.

e) Under the Statute the rights of inheritance of both the surviving spouse and children will be affected because the marriage will not be considered as valid.  Under the Muslim law it will not affect rights of inheritance.

f) Under the common law marriage can be proven by habit and repute even if the marriage is not registered. If registration is made mandatory in MMDA for validity, one cannot establish a marriage by any other means.  

g) The position of the Muslim man and woman will be worse than those who are not Muslims if registration is made mandatory for validity.

My Recommendations 

1. No amendments to be made to Section 16. From a strictly legal point of view, Section 16 is a very important provision.  It is a conduit through which the variant Muslim laws can be imported into the Muslim law.  Thereby leaving room for the development and enrichment of the Muslim law in this country.  Section 16 must remain untouched.

2. Section 17 which provides for registration of marriages may be amended as follows:

1. 1. A new Sub-section to make registration compulsory and in order to avoid ambiguity to expressly mention that non-registration will not invalidate the Nikah marriage.

2. 2. A new Sub-section to be introduced requiring any one or more of the bridegroom or bride or Guardian (wali) to cause the registration of the marriage immediately or within three months from the date of the Nikah.

2. 3. A new Sub-section stating where a marriage is not registered within the stipulated three months period and, before the lapse of the fourth month, any one of the bridegroom or bride or Guardian (wali) or any one of the two witnesses or any other person who has knowledge about the Nikah e.g. parents, relations, family friends can bring such failure to register the Nikah marriage to the notice of the Quazi of the area.  The Quazi shall be empowered to summon the parties and effect registration through the District Registrar. 

3. A new liability Section; Failure on the part of the Bridegroom or the Guardian (wali) or the bride, in case there is no wali, to fulfil the requirement of registration under (x) or (x) above, shall make each of them liable for a fine of Rs. 5,000.  This fine to increase by an additional Rs. 1,000 with the lapse of time i.e. every six months of delay after the passage of the first three months shall make each of them – the Bridegroom, the Wali and the bride, in case there is no wali, – liable to an additional Rs. 1,000.

4. Such imposition of fines shall be preceded by a proper inquiry with discretionary powers given to Quazi and provisions for the appellate process.

5. A new Sub-section introducing additional provisions empowering the Quazi to hear such cases, to order the registration of such Nikah marriages through the District Registrar, empowering the Quazi to refer the matter to the Magistrate’s Court in case of no response to summons and any other related matters which are considered relevant and necessary to give effect to the Section.

6. The above to be implemented after an initial transitional period (to be determined) during which time public awareness has to be consistently created using all possible media available.

7. The objective of registering the marriage is to protect the woman and children.  Therefore, to invalidate the marriage for not registering is not a solution to this problem.  Even despite making it compulsory, people can continue to do Nikah and avoid registration like it was seen during the period before the GMRO.