Muslim Woman Need Not Move Court To Record 'Talaq', Marriage Registration Officer Can Record It : Kerala High Court
The Kerala High Court has observed that there is a lacuna in the Kerala Registration of Marriages (Common) Rules, 2008 since it does not provide a provision to register divorce when divorce was obtained under personal law.A divorced Muslim woman had approached the Court seeking to 'record the fact of divorce' in the Marriage Register after her marriage was dissolved on pronouncing Talaq....
The Kerala High Court has observed that there is a lacuna in the Kerala Registration of Marriages (Common) Rules, 2008 since it does not provide a provision to register divorce when divorce was obtained under personal law.
A divorced Muslim woman had approached the Court seeking to 'record the fact of divorce' in the Marriage Register after her marriage was dissolved on pronouncing Talaq.
Justice P.V. Kunhikrishnan observed that the authority which has the power to register the marriage will also have the authority to record the fact of divorce. It further observed that a divorced wife who has registered marriage under the 2008 Rules on obtaining a divorce under personal law shall not be insisted for obtaining an order from the Court.
“Simply because a person registered the marriage as per Rules 2008, she need not be dragged to a court of law for making entries in the Marriage Register regarding the divorce if she obtained the same as per her 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. I think that there is a lacuna in Rule 2008 in this regard.”
The marriage of the petitioner (woman) and respondent (man) was solemnized in 2012. Their marriage was also registered in the Marriage Register as per the Kerala Registration of Marriages (Common) Rules, 2008. In 2014, the marriage was dissolved by the respondent by pronouncing Talaq. The Divorce Certificate was also issued.
The divorced wife approached the Local Registrar For Births & Deaths & Marriages to make the necessary entries in the Marriage Register regarding the dissolution of marriage which was denied to her due to lack of an enabling provision.
The Court found that there was no provision in the 2008 Rules to register divorce when the marriage was dissolved by pronouncing Talaq. The Court thus invoked the general powers under Section 21 of the General Clauses Act, 1897. Section 21 provides thus:
“Section 21 of the General Clauses Act says that, where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”
The Court held that a divorced wife who has registered her marriage as per the 2008 Rules shall not be handicapped due to lack of provision to register divorce since the divorce was obtained under personal law. The Court observed that the authority which has the inherent power to register the marriage will also have the power to register the dissolution of the marriage.
"...If the law supposes that.....the law is an ass – a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience-- by experience.......”, the Court quoted dialogue from the famous novel Oliver Twist, written by Charles Dickens to state that the expression 'law is an ass' was a derisive expression to show the rigid application of law on literal interpretation which contradicts common sense. It added that in such situations, the Constitutional Courts must act.
It observed that the 2008 Rules have a lacuna which should be brought to the consideration of the legislature for making changes. Thus, the Court directed the registry to forward a copy of the judgment to the State Chief Secretary for doing the needful.
Accordingly, the Court directed the registrar to make an entry regarding Talaq in the Register of Marriage. It observed that only when there was any dispute regarding the validity of divorce, the registrar need not need to record divorce without an order from the Court.
Counsel for the petitioner: Advocates K V Pavithran, Jayanandan Madayi Puthiyaveettil
Counsel for the respondents: Government Pleader B S Syamantak
Citation: 2024 LiveLaw (Ker) 47
Case title: Neyan Veettil Behsana V Local Registrar For Births And Deaths & Marriages
Case number: WP(C) No. 9162 OF 2015