The now-repealed law

The registration of marriages and divorces between Muslims in Assam had been taking place under the colonial-era Assam Muslim Marriage and Divorce Registration Act, 1935.

This Act was in line with Muslim personal law, and authorized the state to grant a license to “any person, being a Muslim” to register such marriages and divorces. There were 95 such Muslim registrars or kazis across the state, and they were deemed to be public servants.

Govt’s rationale for repeal

The Cabinet decided to scrap the law in February this year. In March, the government notified an Ordinance repealing the 1935 Act with immediate effect. There has been no legislation governing the registration of marriages and divorces between Muslims in Assam since then.

On Thursday, the Assembly passed the Assam Repealing Bill, 2024 to replace the Ordinance.

The government’s main argument for doing away with the 1935 Act was that it allowed the registration of marriages of and between minors.

It had in particular pointed to Section 8 of the repealed Act that lays down the procedure to make an application to the registrar, which said, “…provided that if the bride and groom, or both, be minors, application shall be made on their on behalf of their respective lawful guardians…”.

Section 10 of the Act, which laid down the procedure for making entries in the marriage register, had the same provision.

Features of the new law

The Bill passed by the Assembly on Thursday regulates marriage between two Muslim persons which “includes ‘nikah’ or any other ceremony by which two persons are made husband and wife following Muslim personal law and Islamic rituals”.

📌 There is no role for kazis in registering marriages under the new law. The registering officer shall be the government’s Marriage and Divorce Registrar in that jurisdiction, who is the Sub-Registrar.

📌 For a marriage to be registered under the new law, seven conditions must be fulfilled. Important among these conditions: the woman should have attained 18 years of age and the man 21 years of age before the marriage; “the marriage has been solemnized on free consent of both parties”; at least one of the parties must be resident within the district of the Marriage and Divorce Registrar for 30 days before giving notice of registration to the officer; and the parties shall not be within the prohibited degree of relationship as per Muslim law.

📌 The parties are required to give the registering officer at least 30 days’ notice before the intended registration, with documents attesting to their identities, age, and place of residence. This provision is similar to the one in the Special Marriage Act.

📌 Objections to the marriage are allowed within the 30-day period on grounds of violation of any of the conditions laid down in the Bill, which will then be inquired into by the Registrar. If the Registrar after inquiry refuses to solemnize the marriage, the Bill provides for two stages of appeal, to the District Registrar and then, the Registrar General of Marriages.

📌 The registering officers must act if they find that either of the parties is under age. If the officer makes this discovery during the scrutiny of documents, she must immediately report it to the jurisdictional Child Marriage Protection Officer appointed under the Prohibition of Child Marriage Act, 2006, and transmit all relevant records “for the effective prosecution of persons contravening the provisions of the…Act and for initiating appropriate legal action”.

📌 An officer who “knowingly and willingly” registers a marriage that violates any of the conditions is liable to be imprisoned for up to a year and fined up to Rs 50,000.

📌 The Bill states that its provisions “shall be in addition to and not in derogation of the provisions of the prevailing Muslim personal laws.” However, under Muslim personal law, the marriage of a bride who has attained puberty is considered valid — and puberty is presumed, in the absence of evidence, on completion of the age of 15 years. Earlier this month, the Supreme Court agreed to an early hearing of a plea by the National Commission for the Protection of Child Rights seeking an authoritative pronouncement on whether Muslim personal law allowing child marriages will prevail over the Prohibition of Child Marriage Act, 2006. This is a question on which different High Courts have made differing observations.

Debate in the House

Aminul Islam, MLA of the opposition AIUDF from Mankachar, questioned the need to repeal the 1935 Act if the primary objective was to prevent child marriages — this objective could have been achieved by amending Sections 8 and 10 of the old Act, he said.

Islam argued that the 1935 Act had been amended as recently as in 2010 to make registration under the Act compulsory; it had been voluntary originally.

Chief Minister Himanta Biswa Sarma responded that these amendments would not have sufficed, and that the government’s intention was also to end the role of the kazis. He referred to the government’s crackdown against child marriages last year, in which more than 4,000 people had been arrested — mostly men who had married underage girls, and their relatives and religious functionaries who had solemnized these marriages.

“…We found that the kazis register child marriages… When the cases came up in the High Court, they said that they have the power to register child marriages…and…the High Court gave them bail because kazis have the power to register child marriages. under the Muslim Marriage and Divorce Registration Act… It means that they (kazis) are not opposed to child marriage in principle,” the chief minister said, adding that registration by a government officer will increase accountability.

Sarma referred to the Supreme Court’s 2006 verdict in Seema vs. Ashwani Kumar in which the court had directed the central and state governments to ensure compulsory registration of marriages. “That means that the state has been given the responsibility of getting marriages registered. The state can’t rely on a kazi arrangement for this,” he said, referring to kazis as “private entities”.

Islam also said that the simpler process of registering under the older Act had been replaced by a more complex one, drawn from the provisions of the Special Marriage Act.

“Most of the provisions have been drawn from the Special Marriage Act which is an option for inter-religious marriages… It can be terrible… to make the registration of marriages between two Muslims so difficult,” he said, pointing out that “lakhs of people” would be impacted.