Registrars play a crucial role in ensuring that the system of Registration allows for the recognition of marriage and divorce. Registrars also protects against illegal marriages such as the marriage of minors, the mentally handicapped who is incapable of informed consent, unwilling party(ies) and sale marriages.
The experience of other Muslim countries have shown how corruption and incompetency of Registrars have caused grave difficulties for many people – who in the process, become open to criminal liability. Legislation and implementation of legislation must be strict on therevocation of Registrar License and prosecution of Registrars in cases of abuse.
- Legislation should prescribe criteria and minimum qualifications for the appointee. Being “fit” and “proper” is not an objective evaluation. In Bangladesh, candidates seeking licence of a Marriage Registrar must possess Alim Certificate from a Madrasha Board or University, must be between 21 to 40 years of age, and a resident of the area.
- Legislation should ensure the permanency of the Registrar’s role, unless it be revoked in the event of a violation of the conditions laid down by the law. InBangladesh, a Marriage Registrar shall hold office till expiry of 65 years of age.
- Legislation should provide harsh penalties, including imprisonment, for Registrars who register marriages without parties’ consent and illegal marriages such as Baad, forced and child marriages. (It was recommended by the 1997 Commission in Pakistan that imprisonment should extend to three years)
- Legislation should stipulate who is to ensure the registration of marriage (qazi, or another person who solemnizes the marriage) and in the event the marriage is not registered, it is he who will be held criminally liable and not the parties’ or their families unless they were involved in a collusion not to register.
- Legislation should place a responsibility upon the Registrar to remit the nikahnamah to the appropriate office/Registry whereupon if he fails to do so he would be punishable with a fine.
- Legislation should clearly state which office (name) the marriage shall be registered.
- In the case of non-registration, the marriage should not automatically be rendered void. Marriages may not be registered for innocent reasons – and this is possible in areas of Afghanistan with widespread illiteracy and bureaucratic errors.
- Legislation should prescribe a time bar to require all marriages to be solemnized within 3 years of its enactment.
- Legislation should make registration compulsory within a time period (of say 3 months) after marriage or in the case of divorce, after a revocable divorce.
- Legislation should require that 3 copies of the marriage or divorce certificate be given to the parties and kept by at the related office. These copies should be free.
- In Bangladesh, under s.9 of the Muslim Marriages and Divorces Registration Act 1974, copies of the registration is given to parties for free
- S. 6 of the same law has provided for an appeal to register a divorce through a different Registrar in the event parties’ are refused registration of divorce by their Registrar.
- The 1956 Report of the Commission on Marriage and Family Laws (Pakistan), recommended that the government should make the nikahnamah (3 copies in one packet) available for sale at every post office at a nominal price.
- The 1997 Commission in Pakistan recommended that an adequate number of women be appointed as Nikah Registrars.
The Duty of the Nikah Registrar is a sacred one.
The following is an excerpt from Shirkat Gah, Women’s Rights in Muslim Family Law in Pakistan: 45 Years of Recommendations v the FSC Judgement (2000)
The important nature of the responsibilities placed upon the Nikah Registrar were brought out clearly in Shah Din and others vs. The State PLD 1984 Lahore 137, a case in which a woman alleged she had been abducted and raped while the counter allegation was the existence of a registered nikah.
Hearing a bail application, the honourable court in its judgement noted that “The incidents giving rise to proceedings like the one in hand would be greatly reduced if the Nikah Registrars appointed under the Muslim Family Laws Ordinance 1961, instead of not simply filling the various columns of nikahnama, in routine, realise that the duty they were required to perform is very sacred because rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights flow from valid marriage. As public servants which essentially they are, they should demonstrate more sense of responsibility before authenticating the Nikah making proper enquiries as to the competency of the parties to understand the nature of their act, their ages and whether or not they are acting of their free will and without any compulsion.”
The Court also noted the Nikah Registrar’s liability to criminal charges for his failure to perform his dutiesproperly