The Kerala High Court has said that the Registrar for Births, Deaths and Marriages should not ask for a court order for recording a divorce obtained through talaq under Muslim personal law .
The bench of Justice PV Kunhikrishnan said that if the divorce is as per the personal law, a Muslim woman is not required to come to court for recording talaq and the talaq can be recorded by the Registrar himself.
The 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 law.
This, the Court said, would put only divorced Muslim woman to 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 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.