A Muslim married couple registering their marriage in Delhi might be in for a rude shock in case they want their marriage and inheritance to be governed by Muslim personal law. The Delhi government’s policy on compulsory registration of marriages is effectively forcing Muslims to relinquish their personal law.
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.
Background
Marriages which are performed under various personal laws are recognised as valid marriages under the Indian legal system. However, traditionally such marriages were not registered with any government department and the authorities did not have any record of marriages performed under various personal laws.
In 2006, the Supreme Court in the case of Smt. Seema vs Ashwani Kumar [TP (C) 291/2005], recognised the need to have a record of all marriages being performed under such personal laws and directed state governments to formulate rules for compulsory registration of marriages.
Consequently, the Delhi (Compulsory Registration of Marriages) Order, 2014 was enacted by the Delhi government. The Order requires all marriages performed in Delhi to be registered within six months, failing which a penalty of Rs 1,000 is to be imposed. Although the quantum of penalty is minor, non-registration of marriage deprives a married couple of a marriage certificate, which is an essential proof of marriage required by various government departments.
It is important to note that 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.
Effect of registering marriage under the SMA
The scheme of the SMA is such that a marriage can directly be performed under that Act and such marriages are governed by the provisions of the SMA itself. These are ordinarily referred to as court marriages. However, the SMA also provides the option to couples who have married under personal law to register their marriage under the SMA and opt out of their personal law.
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 solemnized 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 solemnization 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, 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.
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 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.
The choice provided under the SMA was the reason that recently a couple who had been married under Muslim personal law for three decades decided to register their marriage under the SMA. They chose to be governed by the Indian Succession Act as they preferred the provision of inheritance under that law rather than Muslim personal law. Unlike the Kerala couple who made the choice to follow the SMA provision, any Muslim couple marrying in Delhi is not granted such a choice. They are compulsorily required to register their marriage under the SMA and are thereby forced to give up the right to their personal law.
The entire modus adopted by the Delhi government is also deeply troubling because the marriage order itself did not envisage this policy. It has been enforced stealthily by slightly tweaking the registration form for registration of marriage. Further, the policy will not affect Parsis and Christians too radically, as their inheritance law is already regulated by the Indian Succession Act. They will only be affected to the extent that their personal law on divorce will cease to be applicable.
Practice in other states
The Kerala government also formulated marriage registration rules after the directive received from the Supreme Court in 2006. However, they formulated separate rules for marriages to be registered under the SMA and personal laws. The Kerala rules clearly give the option to couples on whether they wish to simply register the marriage under the rules or whether they wish to adopt the SMA. On the other hand, Maharashtra has a separate law known as the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998 which regulates the registration of marriages solemnised under personal law.
Possible contempt
The legality of registration of Muslim marriages under the SMA in Delhi was challenged before the Delhi high court in the case of Dhanak of Humanity & Anr. Vs State of NCT of Delhi [WP (C) 7341/2021]. The petition was disposed off on October 4, 2021 after the Delhi government’s counsel assured the high court that the Delhi government will issue necessary instructions to register Muslim marriages directly under the marriage order and not under the SMA.
The court order makes it clear that the Delhi government had no justification to register marriages under SMA when such marriages had already been performed under personal law. In spite of the Delhi government’s assurance almost 18 months ago, they are yet to issue the required instructions and a case for contempt against the state government can be made out.
Moreover, even if the policy changes take effect now, Muslim couples who have already registered their marriage under the SMA and have unknowingly given up their personal law have been deprived of their choice of law to govern their personal lives. Such couples will not be governed by their personal religious law even though they chose to do so by marrying under their personal marriage laws.
The 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.