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Judgment
1.Heard Mr. A. R. Bhuiyan, learned counsel for the petitioners in WP(C) No. 5122/2009 and Ms. R. Choudhury, learned Amicus Curiae. Also heard
Mr. D. Saikia, learned Sr. Add. Advocate General, Assam assisted by Ms. N. Bordoloi, learned counsel for the respondent Nos. 1 and 2, Mr. M. U.
Mahmud, learned counsel appearing for respondent Nos. 6, 7 and 8 in WP(C) No. 5122/2009.
Heard Dr. B. Ahmed, learned senior counsel assisted by Mr. A. K. Azad, learned counsel appearing for the petitioners in WP(C) No. 4496/2010.
Heard Mr. M. U. Mahmud, learned counsel for the petitioners in WP(C) No. 5541/2012 and WP(C) No. 4593/2014.
Heard Mr. A. K. Talukdar, learned counsel appearing for the for respondent No. 3 in WP(C) No. 5541/2012 and WP(C) No. 4593/2014.
The core common theme which runs through these petitions is related to Section 3 of the Assam Moslem Marriages and Divorces Registration Act,
1935, (hereinafter referred to as the “Actâ€) which Act had been specifically enacted for registration of Muslim marriages and divorces in the
State of Assam, as the competent authority to register the Muslim marriages and divorces in the State of Assam and issue certificates of registration
by furnishing attested copy of the entry in the register.
It has been provided under Section 3 of the Act that the State Government may grant licence to any person being a Muslim, authorizing him to
register Muslim marriages and divorces which have been effected within certain specified limits. Section 3 reads as follows:
“3. The [Provincial Government] may grant a license to any person, being a Moslem, authorising him to register Moslem marriages and divorces
which have been effected within certain specified limits, on application being made for such registration; and may revoke or suspend such license:
Provided that not more than two persons shall be licensed to exercise the said functions within the same limits: and provided further that, when two
persons are so licensed to act within the same limits, the one shall be a member of the Sunni, and the other of the Shia, sect.â€
Section 11 of the Act provides for furnishing attested copy of the entry in the register so maintained on completion of registration of any marriage or
divorce by the Moslem Registrar and no charge shall be made for such copy.
Other provisions of the Act relate to the ancillary aspects of registration of which this Court is not presently directly concerned with. Presently, we
are primarily concerned with the provisions of Sections 3 and 11 of the Act under which certain persons who are Muslims are given licences by the
State Government for registration of Muslim marriages and divorces who are referred to in the Act as Moslem Registrars and who can issue the
marriage certificates. As regards the scope of the aforesaid provision of Section 3 as to who are entitled to register marriages and with functioning of
such registering authority, in view of certain confusions about the same on earlier occasions, this Court had to intervene and had to clarify the same.
One such clarificatory judicial interpretation is to be found in the decision rendered on in the Writ Appeal No. 558 of 1997 (All Assam Muslim
Marriage and Divorce Registrar and Kazi Association, Morigaon Vs. State of Assam), 2000(3) GLT 370, in which it was clarified that while a Kazi
could perform a legal marriage, when it comes to registration of the marriage, the same cannot be done by a Kazi appointed by a private association.
It has to be done only by Kazi or such person appointed under the aforesaid Act.
In fact, it has been admitted by all concerned here that while marriage can be solemnised by any Kazi and keep the necessary record, registration of
the marriage has to be done only by a Kazi or any such person as may be appointed or authorised by the State Government under Section 3 of the
Act. Relevant portions of the aforesaid judgment are reproduced as below:
“The aforementioned provisions having been interpreted by us, the question arises as to on which point the counsel for the parties are crossing
swords. As has been noticed in the beginning by us, there is hardly any dispute in the present case between the parties on the real questions. In the
light of the provisions read before us, which have been so interpreted, there cannot be any dispute, and, in fact, none has been raised during the course
of the arguments that an association can appoint a Kazi and such a Kazi can perform a legal marriage. At the same time, there is sufficient force in
the argument of the counsel for the appellant, Mr. A. K. Phukan, that if the parties want such a marriage to be registered under the Assam Act, 1935,
it cannot be done by a Kazi appointed by a private association and that it has to be done by Kazi appointed under the said Act.â€
The aforesaid decision had been followed by this Court in subsequent writ petitions including in WPC No. 1864/2003 (Muslem Uddin Ahmed Vs.
State of Assam & Ors.) reiterating the legal position that only the Government appointed Kazi or such persons can register a marriage and no one
else.
It may, however, be mentioned that the Act does not specifically use the word “Kazi†for the purpose of authorising the registration but “any
person, being a Moslemâ€. Thus, any one whether Kazi or not, but being a Muslim, if authorised under the Act under Section 3 thereof, can register a
Muslim marriage under the Act.
After the aforesaid issue had been settled by this Court as mentioned above, normally there ought not to have been any further dispute or
controversy relating to registration of Muslim marriages. However, either due to misinterpretation or misunderstanding of the law, problems continued
leading to the filing of these petitions.
Writ Petition No. 5122/2009 has been filed by all Assam Muslim Marriages and Registrar and Kazi Association and others stating that though it is
only the Government appointed Kazi and such other persons under Section 3 of the Act who are entitled to do the registration of the Muslim marriages
and divorces, it has been found that a large number of unauthorized persons under various banners including the private respondents No. 6, 7 and 8
have been indulging in the activity of issuing registration certificates of Muslim marriages in the State of Assam, which they are not entitled to do, thus,
not only entrenching upon the exclusive statutory arena of the Kazis and such authorised persons appointed by the State Government under the Act. It
has been claimed that these certificates issued by the unauthorised persons are misleading the common man into believing that these unauthorised
entities are also competent to issue such marriage registration certificates. The petitioner association stated that because of mushrooming a large
number of such non-government entities issuing marriage certificates, not only the functions and authorities of these legitimate Government appointed
Kazis or Moslem Registrars have been undermined, but also innocent persons have been duped by these unauthorized persons/organisations into
believing that the marriage certificates issued by them are valid registration certificates which put these married persons under jeopardy in as much as
registration of marriages is now compulsory as per the decision of the Hon’ble Supreme Court, as these married persons are holding invalid
marriage certificates. Accordingly, this petition has been filed seeking for a direction to the State Government to ensure that such unauthorized Kazis
or entities, who are not appointed by the State Government under the Act, do not continue in their illegal activities of issuing marriage certificates or
similar such misleading certificates.
In Writ Petition No. 4496/2010, the petitioner Society and others have alleged that though the members of the Society are qualified Imams and are
competent to solemnise marriage ceremonies which they are performing in accordance with religions injuncts, they have been, however, subjected to
unnecessary harassment by the State authorities at the instance of the All Assam Muslim Marriages and Divorce Registration and Kazi Association
and others, and they have been prevented from performing their legitimate functions and duties as Imans while solemnising marriages of the Muslims
and accordingly, has sought for necessary restrain orders to be issued to the authorities so that the members of the Society are not harassed in
performing their social functions and conducting these ceremonies.
Writ petitions, WP(C) 5441/2012 and WP(C) 4593/2014 have been filed by the petitioners seeking a direction to be issued to the respondent
authorities as well as the Association of All Assam Muslim Marriages and Divorce Registration and Kazi Association from interfering with their
legitimate functions of performing the Muslim marriages and discharging legitimate social functions. The petitioners contented that they are legally
entitled to perform the Muslim marriages in connection with which they have been issuing certificates of the performance of marriage. However, the
authorities and also at instance of the private respondents have been disturbing their performance of solemnization of marriages. They have submitted
that they are not issuing any marriage registration certificate as contemplated under the Act, but merely issuing certificates to the effect that they had
duly performed the Muslim marriage ceremony. In other words, what they are doing is to issue “marriage performance certificates†and not
“marriage certificatesâ€. However, the authorities by claiming that they are issuing marriage certificates under the Act are harassing them though,
in effect, what they are doing is merely performing marriage ceremonies for which they are issuing appropriate certificates to certify the performance
of the marriages, which is not barred under the Act.
Thus, from the above claims and counter claims, it is clearly evident that the main issue revolves around issuance of marriage registration
certificates by the Kazi or such persons who are not authorised under Section 3 of the Act.
The stand of the State Government as highlighted by Mr. D. Saikia, learned senior Additional Advocate General, Assam is that the Assam Muslim
Marriages and Divorces Registration Act, 1935 has carved out a specific field and area of activity to be exclusively performed by the Government
authorised persons only. Only such persons who are appointed and authorised under the Act for performing such activities which are specifically
covered by the Act can perform such acts in the manner laid down in the said Act and Rules framed there under and by no one else.
As a corollary, any other authority or person who is not authorized under the Act cannot perform any such activity which has been specifically
assigned to the persons appointed under the Act called the Moslem Registrars. He further submits that not only such activities which are specifically
mentioned in the Act but any such activity which may tend to or which may be similar or identical in nature would be barred under the Act. Hence, no
one including the petitioners in WP(C) 5541/2012 and WP(C) 4593/2014 or WP(C) No. 4496/2010 or any such person can perform any of the specific
tasks assigned under the Act, unless so authorized by the State Government in the manner prescribed in the Act. He further submits that some of
these private entities are claiming to be merely performing the role of solemnizing the marriages but what in fact they are doing is also to issue
certificates which are quite misleading to the public, which is not permissible under the Act.
As discussed above, it has been clearly held by this Court that it is only such Kazi or Government appointed persons under Section 3 of the Act
who are entitled to register marriages and issue certificates of registration of the Muslim marriages and no one else, thought it has also been clarified
by this Court that any other person will be competent to solemnize a marriage and also can keep the records.
As mentioned above, confusion seems to have arisen when these two categories of persons, those authorised under the Act and those who are
not, are issuing marriage certificates which are similar in nature, blurring the differences in the certificates issued by them, leading to protest by some,
like the petitioners in W.P.(C) No. 5122 of 2009 that some interlopers are usurping their role of registration of marriages and issuing certificates to that
effect, much to the detriment of the gullible people by misleading them into believing that they are in possession of valid marriage certificates, which, in
fact, are not.
As evident from the pleadings, the problems seems to have arisen when some of the Kazis or such other persons, who are not authorised under
Section 3 of the Act, after performing the marriage ceremony have been issuing certificates giving details of the married persons with their particulars
certifying that such marriage had been performed as reflected in some of the copies of such certificates annexed to the petition. It is about these
certificates issued by such persons who are not authorised under the Act that objections have been raised.
On the other hand, it is the specific claim of the respondents in W.P.(C) No. 5122/2009 and petitioners in W.P (C) No. 5541 of 2012 that they are
entitled to perform marriage ceremonies and the no statute or the Act prohibits performance of solemnisation of Muslim marriages by anyone who are
not licensed under Section 3 of the Act, and it is in fact what, they are doing. They contend that they cannot be prevented from doing their legitimate
duties and functions. They assert that certificates issued by them are mere reproduction from their records they maintain about performance of the
marriages by them and these are not meant to be certificates under the Act. They submit that it is neither their responsibility nor their fault if the
married couple are satisfied with such certificates of performance of marriage issued by them. It is also not their responsibility to urge the married
couples to register their marriages under the Act.
They have also contended that the Government appointed Muslim Registrars have been charging exorbitant rates of fees from the common people
for issuing marriage certificates. Perhaps considering the extortionist rates charged by the Government appointed Registrars, the ordinary people have
been flocking to them and requesting for issuing certificates of performance of marriage for which they are charging very nominal fees of about
Rs.100/- or so. Thus, they claim that the common people are happy with them and there is no complaint against their functioning and hence they
should be allowed to continue with their activities of solemnising marriages and issue certificates of performance of such marriages.
Under the circumstances, Ld. Sr. Additional Advocate General has urged that in order to avoid any confusion in this regard, any such private
agencies or NGOs who are not authorised under Section 3 of the Act should not be allowed at all to issue any such certificate even relating to
performance and solemnization of marriage.
It has been also submitted on behalf the State Government that in order to prevent any misuse of authority by the Government appointed Kazis and
others under Section 3 of the Act, from charging exorbitant rates, necessary directions may be issued to the Government authorised Kazis or persons
to charge only such fees as has been specifically mentioned under Schedule IV to the Act while registering marriages and issuing certificates. It has
been submitted that it would also be beneficial if it can be specifically directed that the Government appointed Kazis must strictly adhere to the rules,
procedures and requirements of the Schedule mentioned under the Act to prevent any misuse of the power and authority. It has been also submitted
that if the schedule rates are properly displayed by the Government appointed Kazis, it would also help the innocent public by cautioning them from
paying hefty amounts beyond the official rates.
Dr. B. Ahmed, the learned counsel for the petitioner has also submitted that it would be advisable if the State Government issues clear guidelines
and regulations in the functioning of the Muslim Registrars and other areas where the rules and Act are silent.
The allegations that the Government appointed Muslim Registrars have been charging exorbitant rates of fees for registration of marriage and
issuing marriage certificates, however, has been vehemently denied by Mr. A. R. Borbhuiyan, learned counsel for the petitioner.
It has been submitted on the part of the private entities that they are entitled to solemnize marriages and also entitled to issue such certificates to
that effect, and there could not be any restriction on them to issue such marriage solemnisation certificate.
This Court is of the view that if it can be specifically made clear in the certificates so issued by such persons not appointed under Section 3 of the
Act, that it is only the Kazis appointed by the Government who are authorized to issue the marriage certificates and no one else, which has been also
explained by this Court on earlier occasions as referred above, perhaps the problem could to a large extent can be resolved.
This Court would like to clarify that this Court is not dealing with other ancillary issues raised in these petitions and the decision of this Court is
confined primarily to the issue as to whether any other person other than Government appointed, under Section 3 of the Act, should be allowed to
issue any certificate relating to performance of marriage. Other issues raised are left to be decided in appropriate proceedings.
As mentioned above, the controversy can largely be resolved if the roles of the marriage registrars appointed under the Act and the Kazis or such
other persons solemnising marriages who are not appointed under the Act are clearly delineated and specified and as to what they can do or not do.
It may be noted that registration of marriage under the Act would involve at least two processes. Firstly, there has to solemnisation of a marriage.
Once the marriage is validly solemnised it would be followed by the process of registration, which is the second process, with which the Act is
concerned.
As also submitted by the Ld. Sr. Additional Advocate General, as far as the Act is concerned, the area specifically carved out and covered by it, is the
process of registration of registration of marriage following a valid marriage, i.e. the second process. It is an arena which is exclusively within the
domain of the Government approved marriage registrars. It is an area which is out of bound for others who are not approved by the State Government
under the Act.
As far as the first process of solemnisation of marriage is concerned, it is an field open to anybody where anyone competent to solemnise a marriage
can perform such act of solemnisation, whether he is approved by the State Government under Section 3 of the Act or not, for the reason that for the
purpose of solemnisation of any marriage, the Act is silent and no restriction or condition is placed on anyone for performing solemnisation of
marriage, so long as he is competent to do so under the Muslim personal law.
However, once the first process of solemnisation is over, the second process of registration becomes a restricted field which is open only to the
Government approved Kazis or any person (also referred to as the Moslem Registrar) licensed under the Act to register such any marriage, and
closed to anyone else.
In such a situation, anyone who is not authorised under the Act cannot perform the act of registration. Such unauthorised person, therefore, cannot
also do any such act which is also similar in nature to the act to be performed only by an approved Moslem Registrar. If any particular act or process
is not permissible to be done under the Act, any such act which has close resemblance to such impermissible act would in ordinary course be, not
permissible to be done by anyone not authorised to do so.
It may be observed that the Act does not confer any specific or exclusive role to the Kazis appointed by the Government or the Moslem
Registrars to perform Muslim marriage and issue such certificates as the case may be. The only exclusive authority given to them is to register the
marriage. As observed above, as far as solemnisation of marriage is concerned, though the Kazis appointed by the Government could also solemnize,
if he is competent, it cannot be restricted to the Government appointed Kazis only, as any person competent under the Muslim personal law can
perform solemnization of Muslim marriages. The problem has arisen when after solemnizing the marriages, these NGOs and others who are not
appointed by the Government under the Act, have been issuing certificates about solemnization of the marriages, which have been construed by many
and also by the authority as marriage certificates, which can be given only by Kazis appointed by the Government and no one else.
This Court has perused some of the certificates issued by those who are not authorised under Section 3 of the Act. Though it is claimed that such
certificates merely certify the performance of the act of solemnisation of marriage, these certificates bear close resemblance to the marriage
certificates issued under the Act by the licensed Moslem Registrars. In fact some of these disputed certificates specifically mention these certificates
as “Marriage Certificatesâ€. These certificates claiming to be marriage performance certificates are tantalisingly similar to those marriage
certificates issued under the Act, in terms of the contents and appearance. These certificates of performance of marriage seem to be indistinguishable
from the marriage certificates issued by the authorised persons under the Act. Thus, there is every possibility that these “marriage performing
certificates†could be treated or be mistaken to be the marriage certificates issued under the Act, which is to be avoided and prevented.
Since no one, other than the authorised person under Section 3 of the Act can register a marriage and issue a marriage certificate, such person not
authorised under the Act also cannot issue any such certificate which bears a close resemblance to the marriage certificate issued under the Act.
Thus, if the marriage performance certificate issued by the unauthorised person bears close resemblance to the marriage certificate issued by the
authorised person under the Act, the unauthorised persons can be prohibited from issuing such closely resembling certificates, though touted to be
marriage performance certificate.
This Court of the view that the principle underlying the legal concept of “passing off†applicable in law of trade mark can be invoked in the
present situation also. “Passing off†is the act or conduct of a defendant which tends to mislead the public to believe that the defendant’s
product or business is the product or business of the plaintiff. In this case, if the act or the certificate issued by the unauthorised persons is believed by
the public as the act or certificate issued by the authorised persons under the Act, such an act or the certificate issued by the unauthorised persons
would be liable to be prohibited by applying the principle of “passing offâ€.
However, as regards the contention of Ld. Sr. Advocate General of the State that there should be a total ban on any kind of certificate being
issued by the members of the petitioner in W.P.(C) No. 5541 of 2012, WP(C) No. 4593 of 2013 and others, who are not authorised under section 3 of
the Assam Moslem Marriages and Divorces Registration Act, 1935, this Court is of the view that such a blanket ban may not be permissible in law as
it would infringe on their fundamental rights as guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution.
They certainly have a right to practice their profession as guaranteed under Article 19(1)(g) of the Constitution and in that regard would have the right
to do such ancillary things attached to that right which would include such activities and right to express their views, which would be also covered by
Article 19(1)(a) of the Constitution. What they are doing is to issue certificates of performance of the marriage ceremony, and this activity of
solemnisation of marriage is not prohibited under the Act. To that extent, they cannot be prevented from solemnising marriages and issue such
certificates of proof of performance by them of the solemnisation of marriage. This certificate of performance of marriage ceremony may help in the
process of registration under the Act. However, what would be impermissible is, to do such acts which would be very similar to those which is to be
performed exclusively by the authorised persons under the Act, which would include issuing any certificate which resembles any such marriage
certificate issued by the authorised persons under the Act.
In this regard, it may be noted that it is also important to maintain and preserve the sanctity of the marriage certificates issued by the licensed
Moslem Registrar as such certificates are issued after following certain procedures.
Section 3 of the Act provides that it is only the licensed persons who are authorised to register marriages and issue certificates to that effect.
Sections 4 to 14, 21 22 of the Act provide how the marriage register is to be prepared, maintained and certificates issued.
Under Section 15 of the Act, the functioning of the Moslem Registrars are subject to the superintendence and control of the Registrar of the District
concerned who may issue necessary orders or directions to them as he may consider necessary.
Under Section 17, the State Government may prescribe the qualifications of the persons who may be appointed as Moslem Registrars and other
matters relating to the functioning of the Moslem Registrars.
The order of refusal by the Moslem Registrar to register a marriage is to be recorded with reasons under Section 19, which is appealable before the
Registrar under Section 20 of the Act.
Thus, the Assam Moslem Marriages and Divorces Registration Act, 1935 is a self contained Act dealing with most of the facets of registration of a
marriage. Thus, registration by the licensed Moslem Registrars is an important statutory process which cannot allowed to be trivialised and this
function cannot be allowed to be usurped by unauthorised persons. These unlicensed persons may devise their own methods of registration and issuing
certificates unknown to law and thus not accountable under the law, yet these certificates may resemble or can be mistaken to be certificates issued
by the licensed Moslem Registrars. Since, no one else has been authorised to register any Muslim marriage or to issue any marriage certificate, to that
extent, no one else can perform these exercises.
This process of registration also bears more importance considering the fact that registration of marriage, irrespective of religion, has been made
mandatory, in view of the direction of the Hon’ble Supreme Court in Seema v. Ashwani Kumar, (2006) 2 SCC 578, relevant portions of which are
reproduced below:
Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily
registrable in their respective States, where the marriage is solemnised.
Accordingly, we direct the States and the Central Government to take the following steps:
(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing
rules, if any, or by framing new rules. However, objections from members of the public shall be invited before bringing the said rules into force. In this
connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of
advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the rules into force.
(ii) The officer appointed under the said rules of the States shall be duly authorised to register the marriages. The age, marital status (unmarried,
divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said
rules. Needless to add that the object of the said rules shall be to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.
Considering the rival submissions advanced and considering the materials on record, this Court is of the view that this batch of writ petitions can be
disposed of with the following observations and directions:
This Court reiterates that it is only the persons including Kazis, appointed/licensed by the State Government under Section 3 of the Assam Moslem
Marriages and Divorces Registration Act, 1935, who have the authority to register Muslim marriages and who can issue marriage certificate and no
one else.
Though anyone, who is competent to solemnise Muslim marriages including any Kazi or Imam, whether authorised under Section 3 of the Act or
not, may perform the Muslim marriage ceremony, it is only the Government approved or authorised persons who can register such marriage and issue
marriage registration certificate as provided under the Assam Moslem Marriages and Divorces Registration Act, 1935.
Anyone who has performed the Muslim marriage ceremony, though, may issue any certificate of performance of the marriage ceremony, such
certificate must not in any way resemble the marriage certificate issued under Section 3 of the Assam Moslem Marriages and Divorces Registration
Act, 1935.
For this purpose, the following must be observed:
(i) Such marriage performance registration certificate issued by the anyone not approved or licensed under Section 3 of the Act, shall make it very
clear in the certificate itself that it is not a Certificate issued under the Assam Moslem Marriages and Divorces Registration Act, 1935 by
printing/displaying prominently in the certificate on the top of the certificate. This display must be printed in a font/script which is larger than that of the
rest of the contents of the certificates. This will dispel any confusion or doubt about such certificate that it is not a certificate issued under Section 3 of
the Assam Moslem Marriages and Divorces Registration Act, 1935.
(ii) The State Government must prescribe a format to be used by all the persons authorised/licensed under Section 3 of Assam Moslem Marriages and
Divorces Registration Act, 1935, which must be
used uniformly by all such authorised persons while issuing marriage certificates under the Act.
(iii) No one other than the authorised/licensed persons shall be permitted to use the said official format of certificate of registration of marriage. No
one shall be also allowed to use any format which bears resemblance to such prescribed official format.
(iv) Any person or agency or organisation who performs Muslim marriages and not appointed by the Government under Section 3 of the Act must
clearly mention in their display boards or advertisements that they do not issue Marriage Registration Certificates under the Assam Moslem Marriages
and Divorces Registration Act, 1935.
(v) Any such persons who are not authorised under Section 3 of the Act, acting to the contrary, will be liable to be prosecuted under the relevant
provisions of law.
(vi) The authorised/licensed persons under the Act shall also display prominently the scheduled rates under the Act chargeable for registration and
also that no fee is chargeable for issuing the attested copy of the entry of marriage register or the marriage certificate, as no fee is leviable for issuing
marriage certificate under the Act.
(vii) The State Respondents take all necessary steps as they may deem appropriate to ensure that none of the licensed Moslem Registrars appointed
under Section 3 of the Assam Moslem Marriages and Divorces Registration Act, 1935 overcharges the fees as prescribed under Section 9 of the Act
as provided under Schedule IV of the Act and also to ensure that provisions of the Act are properly complied by all concerned.
Petitions stand disposed of accordingly.