SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

The opinion of the National Commission for Women on the compulsory registration of
marriages (which was specifically sought by the Supreme Court) stated that non-registration
of marriages affects women the most and would be of critical importance in addressing issues
like child marriage, ensuring consent for marriage, checking illegal bigamy/polygamy,
enabling married women to claim their right to live in the matrimonial house, maintenance,
etc., enabling widows to claim their inheritance rights and other benefits and privileges which
they are entitled to after the death of their husband, deterring men from deserting women
after marriage and deterring parents/guardians from selling daughters/young girls to any
person including a foreigner, under the garb of marriage. Agreeing with the National
Commission on Women’s opinion, the Supreme Court held that:
“As is evident from narration of facts though most of the States have framed rules
regarding registration of marriages, registration of marriage is not compulsory in
several States. If the record of marriage is kept, to a large extent, the dispute
concerning solemnization of marriages between two persons is avoided. As rightly
contended by the National Commission, in most cases non registration of
marriages affects the women to a great measure. If the marriage is registered it
also provides evidence of the marriage having taken place and would provide a
rebuttable presumption of the marriage having taken place. Though, the
registration itself cannot be a proof of valid marriage per se, and would not be
the determinative factor regarding validity of a marriage, yet it has a great
evidentiary value in the matters of custody of children, right of children born from
the wedlock of the two persons whose marriage is registered and the age of
parties to the marriage. That being so, it would be in the interest of the society if
marriages are made compulsorily registrable…Accordingly, we are of the view
that marriages of all persons who are citizens of India belonging to various
religions should be made compulsorily registrable in their respective States,
where the marriage is solemnized.”
Accordingly the Supreme Court has directed each State to carry out its order by notifying the
procedure for the compulsory registration of marriages (after inviting objections from the
public to such procedures) which will include the consequences of non-registration. It has
also ordered that any Central law on the subject must be placed before the court for scrutiny.
Since passing this judgment, the court has periodically accepted and commented on reports
by the States on their progress towards introducing laws for the compulsory registration of
marriages. 195
In Nepal the Interim Constitution guarantees the right to religion – to profess, practice and
preserve the same. 196 Minorities such as Muslims do follow their own personal laws but can
also use the main Nepali law related to marriage, divorce and related issues i.e. the Country
Code 197 , which was introduced in 1854 and went through a significant revision in 1963 (the
current version) and was further amended to introduce gender equality standards in 2002 and
2006.
195 See Seema v. Ashwani Kumar 2008 (1) SCC 180 and Seema v. Ashwani Kumar 2008 (10 ) SCR 566
196 Article 23, Interim Constitution of Nepal, 2007
197
See ‘Muslim women use Nepalese Family Law to counter 'triple talaq’ available at
http://www.wluml.org/node/3918 for an example of how Muslim women are using civil law to contest the
triple talaq system being used by Muslim men to obtain divorce.
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