Nilofar Mirza, a 30-something woman from a Shia Muslim family, was at a loss when her husband denied that he had been married to her. After all, she neither had a nikahnama (marriage certificate) nor any witnesses. In fact, she had nothing by way of evidence to show that they were, indeed, married.
That was more than five years ago and there was little the hapless homemaker could do then to prove her marriage. But with the Supreme Court verdict on October 24 asking all states to make marriage registration mandatory with proper legislation, women like Mirza have a sense of hope.
Nearly two months after the verdict, many in the minority community see the apex courts decision as a step in the right direction. India is a secular country and we must accept the law of the land. We have no reservations about getting social marriages re-registered, says Maulana Mirza Athar of the Lucknow-based All India Shia Muslim Law Board (AISMLB).
Needless to say, registering a marriage has its own benefits and many members of the community swear by these. Khalid Anwar, a software engineer who now works in the UK, says he got married as per Shariat (Islamic law) two years ago. But I had to get my marriage registered so that my wife could get a visa to go with me to the UK, he says. Md Nadeem, a sales manager at a private insurance company in Calcutta, says he had his marriage registered so his wife could go abroad with him. If the Supreme Court wants all communities to get their marriages registered, no community should have any objections, he says.
According to Islamic law, nikah or marriage is a contract between the bride and the groom. Its composed of ijab--qabool, a mode of declaration and acceptance, with either man or the woman making an offer (ijab) and the other accepting it (qabool). The law says the proposal and its acceptance must be made in each others presence or in the presence of their agents, called vakils. The transaction (the proposal and its acceptance) must be conducted in a single meeting.
Sunni law states that the transaction must be made in the presence of two males or one male and two female witnesses who are sane, adult Muslims. In contrast, Shia law says that witnesses are not necessary at the time of marriage.
Under Islamic law, an oral contract of marriage is perfectly valid and there is no need for formal registration. But in India it has become customary for marriages to be solemnised by qazis, who often issue a nikahnama to the party as per the Kazis Act of 1880.
Some seminaries feel that a nikahnama should serve as registration. Shariat has a provision for registration of marriages with the qazi. At the time of nikah, three copies of the nikahnama need to be signed by both the parties, who get to keep a copy each. It should be considered valid evidence. If required, it can be verified, notes Maulana Khalid Rasheed, general secretary of the Lucknow-based Islamic Centre of India.
Some clerics also feel that the registration of Muslim marriages should be made optional. We are not against registration but against it being made mandatory for all. Re-registration could be cumbersome and could create problems as a large population of the society is illiterate, says Maulana Syed Nizamuddin, general secretary of the All India Muslim Personal Law Board (AIMPLB).
But others feel that compulsory registration, as directed by the apex court, will only benefit the community. Its true that oral consent is enough for a Muslim couple to get married. People should understand that the apex court is aware of the problems being faced by those in the interior, and it is for them that its being made mandatory, says Sardar Amjad Ali, a senior advocate of the Calcutta High Court. He feels that clerics have no reason to panic as the apex courts ruling hasnt mentioned that a nikah registered by qazis isnt valid.
There is a catch, though. Insiders say couples quite often get the nikah solemnised by imams, who under Islamic law can conduct the ceremony and issue a nikahnama, but the marriage certificate may become legally questionable. Businessman Sohail Raza, who comes from a Jharkhand village, is a case in point. He had his marriage solemnised (as per the All India Muslim Personal Law Board norms) by a local imam as the state-appointed qazi lived in a faraway town. Official registration of marriage could easily be an answer to such problems.
Lawyer Ali says that if the marriage has been conducted by government-registered qazis, the couple should get the official nikahnama, which is a valid piece of marriage evidence. But those who do not have the official nikahnama should get it registered, he suggests.
The National Commission for Women (NCW) says Muslim women will benefit from marriage registrations. There is no need to fear anything as the personal laws are not being interfered with, NCW chairperson Girija Vyas says.
The legal fraternity believes that everything depends on how soon the apex courts ruling is implemented. A verdict passed by the Supreme Court is as good as a law. Under Article 141 of the Indian Constitution, the state legislature is bound to proceed as per the Supreme Courts direction, says Calcutta High Court lawyer Joymalya Bagchi. He says the state governments should also get the Kazis Act of 1880 amended, making it mandatory for couples to get their marriages recorded in the official nikahnama. This would make re-registration of Muslim marriages redundant, he says.
The advantages of marriage registrations are several. Ali says it will, for one, help curb child marriages. It is expected to help women who are deserted by husbands, as well as in inheritance. It will serve as legal evidence for both husband and wife, Ali says.
Scholars see nothing wrong with marriage registration. Part with your wife with kindness is what Islam preaches. So trying to safeguard the wifes interest (through registration) shouldnt be a problem, says Imtiaz Gulam Ahmed, the dean of Calcutta Universitys law faculty.
The Supreme Court has clearly shown the way.