The Kerala High Court ruled recently that a Registrar for Births, Deaths and Marriages need not insist on court order to record a divorce obtained through talaq under Muslim personal law.
Justice PV Kunhikrishnan held that if the divorce is otherwise in order as per the personal law, a Muslim woman need not be sent to court for recording talaq and the Registrar concerned can record the talaq himself. This ruling came after the Court noticed a gap in the Kerala Registration of Marriages (Common) Rules, 2008 which does not provide for the registration of divorces that are obtained under personal laws.
This, the Court said, would put only divorced Muslim woman to a disadvantage and not divorced Muslim men because if a Muslim husband pronounces talaq in accordance with his personal law, he can remarry without removing the entry in the register of marriage maintained under the 2008 Rules, because his personal law permits more than one marriage in certain situations. However, the divorced Muslim woman cannot remarry till the marriage entry as per the 2008 Rules is removed by approaching a competent court of law.
“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 also opined that the power to register divorce is ancillary to the power to record marriage and, therefore, held that Registrars need not wait for court orders to record divorces that were obtained 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.
Taking this further, the Court also, in his ruling, suggested that the Kerala legislature look into fixing the lacuna in the 2008 laws. The judgment was passed on a petition moved a woman whose marriage to her husband (arrayed as the third respondent) was dissolved in 2014 upon his pronouncement of talaq.
They intimated the Mahal Khazi of the same and he issued a divorce certificate. The petitioner approached the Local Registrar of Births Deaths and Marriages, the same one that had registered her marriage, seeking to make necessary entries in the marriage register regarding the dissolution of marriage.
However, the Registrar refused to do the same pointing out that the 2008 Rules, under which the marriage was registered did not have any provision that would allow it.
This prompted the petitioner to approach the Court seeking directions to the registrar to record the divorce. Since there is no provision in the 2008 Rules to record the divorce, the High Court held that the principle in the general power under Section 21 of the General Clauses Act, 1897 can be adopted.
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.
Accordingly, it held that Registrars can register divorces obtained by talaq without court orders.
The Registrar in this case was directed to consider the application moved by the petitioner to record her divorce, after issuing notice to the husband. If the husband confirms the divorce, the Registrar shall make the necessary entry in the Register of Marriage, the Court ordered.
The petitioner was represented by advocates KV Pavithran and Jayanandan Madayi Puthiyaveettil. Government Pleader BS Syamantak appeared for the State.
 Neyan Veettil Behsana v. Local Registrar for Births and Deaths & Marriages