Paradoxes in the punishment of registration of child marriages
According to the Child Marriage Restrain Act of 2017, the contracting, allowing, solemnisation and registration of the child marriage a punishable offence. The Act has repealed the previous Act of 1929. The present Act does not invalidate the child marriage, rather impose penalty for such marriage. Section 7 of the Act imposes punishment on the persons for contracting child marriage, while section 8 punishes the parents for allowing child marriage. In addition, section 9 provides penalty for the persons who solemnise or conduct the child marriage. Again, section 11 of the Act makes the registration of the child marriage a punishable offence. The section goes on to say that,
"If any Marriage Registrar registers a child marriage, it shall be an offence, and for this, he shall be punished with imprisonment which may extend to 02 (two) years but not less than 06 (six) months, or with fine which may extend to 50 (fifty) thousand Taka, or with both[.]"
Therefore, if the "Marriage Registrar' under the Muslim Marriages and Divorces (Registration) Act, 1974 registers the child marriage, he/she will be punished with imprisonment which may extend from six months to two years or fine which may extend up to 50 thousand Taka or both.
However, the paradox appears when we read section 3 of the Muslim Marriages and Divorce (Registration) Act of 1974, which states that,
"Notwithstanding anything contained in any law, custom or usage, every marriage solemnised under Muslim law shall be registered in accordance with the provisions of this Act."
The provision makes it clear that "every marriage" solemnised under "Muslim law" shall be registered. Here, one may raise question whether the term "Muslim law" means statutory laws that regulates the Muslim's family matter or the shariat. If we read it in connection with section 2 of Muslim Personal Law (Shariat) Application Act, 1937, it clarifies the meaning of Muslim law in section 3 of the Act of 1974 as the Muslim Personal Law or the Shariat. Because, according to this section, the Islamic Sharia Law tends to govern ten matters of Muslim's family that, among others, include the Muslim marriage.
Now, the term "every marriage solemnised under Muslim law" may be interpreted in different ways but every interpretation will include valid marriage solemnised under Muslim law or the Shariat. The Muslim personal law or the Shariat allows child marriage, and it is absolutely valid. At the same time, there is no statutory provisions in Bangladesh that declares child marriage void. Therefore, the term "every marriage solemnised under Muslim law" plausibly includes child marriage too.
In the above circumstances, the Marriage Registrar is bound to register the child marriage under section 3 of the Muslim Marriages and Divorce (Registration) Act, 1974 as the section makes it obligatory with a precise wording, i.e., "shall be registered".
Again, section of 5(4) of the Act of 1974 provides that,
"A person who contravenes any provision of this section commits an offence and he shall be liable to be punished with simple imprisonment for a term which may extend to two years or with fine which may extend to three thousand Taka, or with both."
Therefore, if the Marriage Registrar contravenes section 3 of the Act, that will be an offence under section 5 of the Act. Hence, the person will be punished for the non-registration of the child marriage.
From the above discussion, it is seen that the non-registration of the child marriage is punishable under section 5 of the Muslim Marriages and Divorce (Registration) Act, 1974 whereas the registration of such marriage is punishable under section 11 of the Child Marriage Restrain Act, 2017. That means, the Marriage Registrar is bound to register the child marriage under section 3 of the Act of 1974, and he/she will be punished under section 11 of the Act of 2017 for fulfilling such bindings. The Acts have clear contradiction with each other. So, the government must take initiatives to remove the contradiction between the Acts. Otherwise, the Marriage Registrar will plausibly be punished whether he/she registers or refuses to register the child marriage.
The writer studied law at the Bangladesh University of Professionals (BUP).