Gauhati HC Issues Directions For Registration Of Muslim Marriages Only By Licenced Registrars [Read Judgment]
The Gauhati High Court recently issued a slew of directions in order to ensure that only those duly authorised by the government under the Assam Moslem Marriages and Divorces Registration Act, 1935 issue marriage registration certificates for Muslims in the State.
In doing so, Justice N. Kotiswar Singh emphasised on the importance of maintaining the sanctity of marriage certificates issued by licensed registrars and observed, “…the Assam Moslem Marriages and Divorces Registration Act, 1935 is a self-contained Act dealing with most of the facets of registration of a marriage. Thus, registration by the licensed Moslem Registrars is an important statutory process which cannot allowed to be trivialised and this function cannot be allowed to be usurped by unauthorised persons. These unlicensed persons may devise their own methods of registration and issuing certificates unknown to law and thus not accountable under the law, yet these certificates may resemble or can be mistaken to be certificates issued by the licensed Moslem Registrars. Since, no one else has been authorised to register any Muslim marriage or to issue any marriage certificate, to that extent, no one else can perform these exercises.”
The court was hearing petitions relating to the Assam Moslem Marriages and Divorces Registration Act, 1935, which has been enacted for registration of Muslim marriages and divorces in the State of Assam. Section 3 of the Act provides that the State Government may grant licence to any person being a Muslim, authorizing him to register Muslim marriages and divorces.
The court now noted that several unauthorised people were issuing registration certificates for Muslim marriages in the State. It then reiterated an earlier ruling to explain that only Government appointed persons under Section 3 of the Act are entitled to register marriages and issue certificates of registration of Muslim marriages. However, it clarified that any other person will be competent to solemnise a marriage and keep records.
Additionally, the court observed that such unauthorised Kazis can be prohibited from issuing such certificates of the performance of marriage, which are indistinguishable from marriage certificates issued by the authorised persons under the Act.
“Thus, if the marriage performance certificate issued by the unauthorised person bears close resemblance to the marriage certificate issued by the authorised person under the Act, the unauthorised persons can be prohibited from issuing such closely resembling certificates, though touted to be marriage performance certificate,” it observed.
The court went on to apply the principle of “passing off” to the case before it, observing, “ Passing off” is the act or conduct of a defendant which tends to mislead the public to believe that the defendant’s product or business is the product or business of the plaintiff. In this case, if the act or the certificate issued by the unauthorised persons is believed by the public as the act or certificate issued by the authorised persons under the Act, such an act or the certificate issued by the unauthorised persons would be liable to be prohibited by applying the principle of “passing off”.”
It further clarified that the State Government cannot ban organisations and individuals from issuing certificates of performance of the marriage ceremony, noting that such activity of solemnisation of marriage is not prohibited under the Act. It, in fact, opined that such a ban would infringe upon their fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution of India.
“This certificate of performance of marriage ceremony may help in the process of registration under the Act. However, what would be impermissible is, to do such acts which would be very similar to those which is to be performed exclusively by the authorised persons under the Act, which would include issuing any certificate which resembles any such marriage certificate issued by the authorised persons under the Act,” it explained.
It then issued the following directions:
- This Court reiterates that it is only the persons including Kazis, appointed/licensed by the State Government under Section 3 of the Assam Moslem Marriages and Divorces Registration Act, 1935, who have the authority to register Muslim marriages and who can issue marriage certificate and no one else.
- Though anyone, who is competent to solemnise Muslim marriages including any Kazi or Imam, whether authorised under Section 3 of the Act or not, may perform the Muslim marriage ceremony, it is only the Government approved or authorised persons who can register such marriage and issue marriage registration certificate as provided under the Assam Moslem Marriages and Divorces Registration Act, 1935.
- Anyone who has performed the Muslim marriage ceremony, though, may issue any certificate of performance of the marriage ceremony, such certificate must not in any way resemble the marriage certificate issued under Section 3 of the Assam Moslem Marriages and Divorces Registration Act, 1935.
For this purpose, the following must be observed:
- Such marriage performance registration certificate issued by the anyone not approved or licensed under Section 3 of the Act, shall make it very clear in the certificate itself that it is not a Certificate issued under the Assam Moslem Marriages and Divorces Registration Act, 1935 by printing/displaying prominently in the certificate on the top of the certificate. This display must be printed in a font/script which is larger than that of the rest of the contents of the certificates. This will dispel any confusion or doubt about such certificate that it is not a certificate issued under Section 3 of the Assam Moslem Marriages and Divorces Registration Act, 1935.
- The State Government must prescribe a format to be used by all the persons authorised/licensed under Section 3 of Assam Moslem Marriages and Divorces Registration Act, 1935, which must be used uniformly by all such authorised persons while issuing marriage certificates under the Act.
- No one other than the authorised/licensed persons shall be permitted to use the said official format of certificate of registration of marriage. No one shall be also allowed to use any format which bears resemblance to such prescribed official format.
- Any person or agency or organisation who performs Muslim marriages and not appointed by the Government under Section 3 of the Act must clearly mention in their display boards or advertisements that they do not issue Marriage Registration Certificates under the Assam Moslem Marriages and Divorces Registration Act, 1935.
- Any such persons who are not authorised under Section 3 of the Act, acting to the contrary, will be liable to be prosecuted under the relevant provisions of law.
- The authorised/licensed persons under the Act shall also display prominently the scheduled rates under the Act chargeable for registration and also that no fee is chargeable for issuing the attested copy of the entry of marriage register or the marriage certificate, as no fee is leviable for issuing marriage certificate under the Act.
- The State Respondents take all necessary steps as they may deem appropriate to ensure that none of the licensed Moslem Registrars appointed under Section 3 of the Assam Moslem Marriages and Divorces Registration Act, 1935 overcharges the fees as prescribed under Section 9 of the Act as provided under Schedule IV of the Act and also to ensure that provisions of the Act are properly complied by all concerned.