For better, not worse

For better, not worse
Pamela Philipose

According to a recent estimate, the births of some 10 million children of the estimated 25 million born in India each year remain unregistered. The negative impact of this is obvious since it results in the ``invisibilisation'' of children. If they don't officially exist for the State it means that they also stand deprived of the social benefits and protection they are entitled to and, worse, of the means to secure their rights. They are thus made much more vulnerable to abandonment and exploitation young bodies without identity who can be used, abused and forgotten. This is why registration of birth is seen as a child's first right.

Yet, relatively speaking, the benefits and importance of birth and death registration have been socially recognised. In 1969, the Centre even came up with the Registration of Births and Death Act, which replaced the various state-level laws that had governed such registration thus far, in order to introduce a degree of uniformity and accountability into the system.

If births and deaths are seen as fundamental markers in the life of a social being, there is one other rite of passage that has often eluded the national gaze. I refer, of course, to marriage, which Cicero so memorably defined as the first bond of society. While it is generally known that marriages need to be registered, the State thus far has not displayed any overt interest in ensuring that all marriages that take place in the country are duly registered, or even in working towards such an outcome.

Numerous women in the country are paying the price for this callousness, this invisibilising of the marriage tie. Every claim they make in relation to their marriage requires a marriage certificate in order to be validated, and often they are unable to produce such evidence. Visit any family court in the country and you will find deserted wives, victims of bigamous relationships and property disputes, who stand robbed of their due entitlements because they don't have crucial documentation as proof of marriage.

The ramifications of this go beyond personal lives. Any attempt at social reform that the country embarks upon is also crucially dependent on marriage registration. How, for instance, can we claim that we have put an end to the practice of child marriage in the country, or that our girl children have received eight years of schooling, if we cannot simultaneously ensure the universal registration of marriages?

In January this year, the Indian government officially stated before the Committee of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), that while it agrees to the principle of compulsory registration of marriages, it finds it difficult to ensure that this is done, given the variety of ``customs, religions and level of literacy'' in the country. This is a cop-out, pure and simple. If customs, religions and levels of literacy haven't prevented the state from making birth registration compulsory, why should it be any different for marriage registration?

The government's reluctance to make a stronger commitment to ensuring compulsory marriage registration is all the more mystifying given the fact that there has already been a fair degree of legislation on the issue in the country, cutting across community lines. Under the Special Marriage Act (1954), which is valid for any Indian citizen, irrespective of faith, each marriage is registered by marriage officers specially appointed for the purpose.

The Hindu Marriage and Divorce Act of 1955 makes provision for a Hindu Marriage Register which is open for inspection, although the Act also clarifies that the validity of the marriage will in no way be affected by omission to make the entry in the register.

In Muslim law, a marriage is regarded as a civil contract and the qazi, or officiating priest, also records the terms of the marriage in a nikhanama, which is handed over to the married couple. Under the Indian Christian Marriage Act, entries are made in the marriage register of the church, soon after the ceremony, along with the signatures of the bridegroom, the bride, the officiating priest and witnesses.

Apart from this, state governments have passed their own laws on marriage registration. There is the Bombay Registration of Marriage Act, valid for the states of Gujarat and Maharashtra, the Karnataka Marriage Act, which has been in force in that state from 1983 and the Himachal Pradesh Registration of Marriage Act, which came into force two years ago.

It is against this background that women's groups have urged the State to devise contextually relevant ways of registering marriages. They see this, quite rightly, as a crucial step in helping women enforce their rights within marriage. While they agree that non-registration of marriage should not invalidate the marriage, they are nevertheless keen to see the State, seriously and in a phased manner, make the registration of marriages compulsory on a pan-Indian basis.

This, of course, is not going to be easy because of the manner women have traditionally been viewed. Beautiful bride, loyal wife, self-sacrificing mother, myths can often be as arbitrary as draconian laws. Deconstruct these myths and you discover the numerous ways that are employed to construct women as socially and economically dependent beings. Every attempt in history to correct oppressive practices within the family has had to reckon and wrestle with precisely such mindsets.

As Ratna Kapur and Brenda Crossman put it in Subversive Sites, their book on women and the law in India, ``Family ideology naturalises and universalises the construction of women as ...passive, dutiful and self-sacrificing...'' So why does such a creature require a certificate of marriage, when all she has to do is to worship her husband and trust in his goodness? The biggest stumbling block to legal reform in this country is the tendency to perceive women as definers of family and community identity rather than as individuals with inalienable rights.

Kapur and Crossman quote a particularly telling passage from Shelagh Delaney's A Taste of Honey: ``I'm not frightened of the darkness outside. It's the darkness inside houses that I don't like.'' And sometimes, the darkness inside houses spills out into civil spaces.