Neyan Veettil Behsana v. Local Registrar for Births and Deaths & Marriages

Citation: WP(C) NO. 9162 OF 2015

Recently, the Kerala High Court decided that, under Muslim personal law, a Registrar for Births, Deaths, and Marriages does not have to request a court order to record a divorce achieved through talaq. According to Justice PV Kunhikrishnan, a Muslim woman does not need to go to court to record her talaq; instead, the relevant Registrar may do it on her own provided the divorce is otherwise permitted by personal law. The Court’s decision was prompted by its observation of an inconsistency in the Kerala Registration of Marriages (Common) Rules, 2008, which prohibit the registration of divorces obtained through personal law.

According to the Court, this would only disadvantage divorced Muslim women and not divorced Muslim men because, if a Muslim husband performs talaq in line with his personal law, he is entitled to remarry without having to remove the entry from the marriage register kept in compliance with the 2008 Rules, as his personal law allows for multiple marriages under specific circumstances. The divorced Muslim lady is not, however, permitted to remarry until the 2008 Rules’ marriage entry is revoked by a competent court.

“If a law-abiding Muslim couple registered their marriage as per Rule 2008 and subsequently the husband pronounce talaq, can the registration of marriage as per Rule 2008 be a burden to the Muslim women alone?”, the Court inquired.

The Court concluded that Registrars do not need to wait for court orders in order to record divorces that were acquired under personal law, reasoning that the ability to register divorce is ancillary to the ability to record marriage.

“If there is a divorce under personal law, the authority who records the divorce also has the inherent and ancillary power to record the divorce if the marriage is registered.” If a Muslim woman is divorced and her personal law allows it, she need not appear in court to record the talaq. The judicial concluded that the concerned authority might record the talaq without requiring a judicial order.

The Court also thought it appropriate to recommend that the 2008 laws’ gap be fixed by the legislature.

The ruling was made in response to a petition filed by a lady whose marriage to her husband—who was listed as the third respondent—had been dissolved in 2014 as a result of his talaq declaration.

They informed Mahal Khazi of this, and he granted them a divorce decree. In order to make the required entries in the marriage record detailing the dissolution of marriage, the petitioner went to the same local registrar of births, deaths, and marriages as the one who had registered her marriage.

The 2008 Rules, which were used to register the marriage, did not contain any clause that would have permitted it, thus the Registrar declined to follow suit.

This led the petitioner to come before the court to ask for instructions on how to get the divorce recorded with the registrar.

As the 2008 Rules do not contain a provision for recording divorces, the Court concluded that the broad power under Section 21 of the Broad Clauses Act, 1897, can be applied.

According to Section 21 of the General Clauses Act, where a Central Act or Regulation confers a power to issue notifications, orders, rules, or bye-laws, that power also includes the ability to add to, amend, vary, or rescind any notifications, orders, rules, or bye-laws that have been issued, subject to the same sanction and conditions (if any).

It was decided as a result that registrars can record divorces that were obtained by talaq without court orders.

After giving the spouse notice, the petitioner filed an application to record her divorce, and the Registrar was instructed to take it under consideration. As directed by the court, the Registrar will enter the relevant information in the Register of Marriage if the husband affirms the divorce.

Adv. Khanak Sharma

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