The Kerala High Court has held that a Registrar for Births, Deaths, and Marriages does not require a court order to record a divorce acquired by talaq under Muslim personal law. According to Justice PV Kunhikrishnan, if the divorce is otherwise in order under personal law, a Muslim woman does not need to go to court to record talaq; instead, the Registrar can do so himself.
The verdict came after the Court discovered a flaw in the Kerala Registration of Marriages (Common) Rules, 2008, which does not allow for the registration of divorces granted under personal law.
This, the Court stated, would disadvantage only divorced Muslim women, not divorced Muslim men, because if a Muslim husband declares talaq by his personal law, he may marry again without eliminating the entry from the marriage register maintained under the 2008 Rules, because his law allows for more than one marriage in particular circumstances. However, a divorced Muslim woman cannot remarry until an appropriate court of law erases the marriage entry under the 2008 Rules.
“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 asked.
The Court decided that the right to register divorce is ancillary to the power to record marriage, and hence Registrars do not need to wait for court orders to record divorces acquired under personal law.
“If there is the power to register the marriage, the power to record the divorce is also inherent and ancillary to the authority who registers the marriage, if there is a divorce under the personal law. A divorced Muslim woman need not be sent to a court of law for recording the talaq if it is otherwise in order as per the personal law. The officer concerned can record the talaq without insisting on a court order,” the Court held.
The Court also thought it appropriate to recommend that the legislature look into addressing the gap in the 2008 statutes.
The judgment was issued in response to a petition filed by a woman whose marriage to her husband (arrayed as the third respondent) was dissolved in 2014 on account of their talaq.
They informed the Mahal Khazi of this, and he issued a divorce certificate. The petitioner went to the same Local Registrar of Births, Deaths, and Marriages who had recorded her marriage, and requested that the marriage register be updated to reflect the dissolution of marriage.
However, the Registrar rejected it, citing that the 2008 Rules under which the marriage was registered made no provision for it. This prompted the petitioner to request the registrar’s instructions to record the divorce.
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. The petitioner was represented by lawyers KV Pavithran and Jayanandan Madayi Puthiyaveettil.
Section 21 of the General Clauses Act states that if any Central Act or Regulation confers the authority to issue notifications, orders, rules, or bye-laws, that authority also includes the authority to add to, amend, vary, or rescind any notifications, orders, rules, or bye-laws so issued, subject to the same sanction and conditions (if any).
Accordingly, it held that Registrars can register divorces obtained by talaq without court orders.
The Registrar in this case was asked to assess the petitioner’s plea to record her divorce after giving notice to the husband. If the husband acknowledges the divorce, the Registrar must enter the appropriate information into the Register of Marriage, the Court instructed.
