A recent decision of the High Court Division (HCD) declaring that women cannot act as nikah/marriage registrars in Muslim marriages was subjected to considerable scrutiny. There was a writ petition challenging the validity of a decision of the law ministry cancelling a panel of selected nikah registrars (or commonly known as "kazi") for Dinajpur's Phulbari municipality. The reason shown for cancellation was that all three selected candidates were women and "in the present realities of Bangladesh, women could not be appointed as nikah registrars". One of the selected panelists had filed the petition, which was eventually rejected by the HCD.
It is to be noted that unlike other religions, a Muslim marriage is not considered as a religious sacrament but is in the nature of a civil contract (as reflected in the majority of Islamic legal texts). Hence, Islamic law simply requires offer and acceptance between legally capable parties in the presence of two competent witnesses. However, in Bangladesh we follow certain religious and cultural ceremonies to solemnise a marriage—for example, reciting from the holy Quran as well as following some other social rituals. Although such rituals are commonly practiced, marriage without such rituals is still valid in Muslim law.
Similarly, registration is not a requirement prescribed by Muslim law for contracting a valid marriage. It was the Bengal Muhammadan Marriages and Divorces Registration Act, 1876 that first provided for voluntary registration of Muslim marriages and divorces in the Indian subcontinent. The law created public offices of marriage registers simply to record Muslim marriages and divorces in government prescribed register books. It required parties to apply for registration within one month of the marriage and divorce being effected, clearly indicating thereby that a valid marriage had already taken place without registration.
During the Pakistan period, the issue of registration of Muslim marriages was again brought to light when the Muslim Family Law Ordinance 1961 (MFLO) was enacted. The MFLO was a result of the recommendations made by the Commission on Marriage and Family Laws that was formed in 1956. The purpose of the Commission and the law was to protect and enhance the rights of Muslim women. Although some facilities for voluntary registration were present under the 1876 Act, the MFLO in section 5 provided for compulsory registration of marriages solemnised under Muslim law and prescribed punishment for non-compliance. Compulsory registration was recommended by the Commission as absence of any documentary evidence of a marriage made proof of the marriage difficult, which eventually caused hardships to Muslim married women in claiming rights to dower, maintenance, inheritance, etc.
Later in independent Bangladesh, a separate statute was brought in 1974 for registration of Muslim marriages and divorces, which elaborated the existing provisions on marriage registration. Hence, section 5 of the MFLO was repealed by the 1974 Act, while the rest of the provisions of the MFLO are still in force in Bangladesh. Thus while "solemnisation" of a Muslim marriage is a matter or religious rites and ceremonies, "registration" is purely a matter of statutory law not being part of the religious prescriptions.
The HCD, in rejecting the petition, had mainly relied on two grounds. Firstly, the task of marriage registration had been considered a difficult and somewhat impracticable job for women as it requires traveling in remote areas, often "at night" and may also occasionally involve "crossing rivers and canals through boats". Aside from the fact that across the country, millions of women are successfully employed in jobs requiring equal or higher mobility, it is perhaps only appropriate that the decision as to whether a woman is ready to take up the challenges of the job of a nikah registrar, is left to her own choice without drawing assumptions for all women in general.
Secondly, in justifying appointment of only men as nikah registrars, the court distinguished marriage registrars' role from other public offices holding that "the primary role and duty of a nikah registrar is to solemnise the marriage between Muslim couples". However, as discussed, solemnisation of marriage was never deemed to be within the duty of the nikah registrars under the 1974 Act. Because the law requires the registrars to hold an Alim Certificate from a recognised madrassa, a common practice had developed that the nikah registrars conduct the religious rituals of marriage ceremonies as well. However, it is also not uncommon that a nikah registrar would send his office assistants to solemnise a marriage, or that the parties had already solemnised the marriage and came to the nikah registrar afterwards for registration. In fact, the 1974 Act and its 2009 Rules had also clearly indicated such possibilities by providing that when the marriage is solemnised by the nikah registrar it will be registered at once, but when it is solemnised by any other person, the parties have to register the marriage with the nikah registrar within a certain period from the date of solemnisation.
The HCD also held the view that during menstruation, a woman is not allowed to enter a mosque where apparently many of the marriages now take place. Menstruation as such, was considered as a "physical disqualification" for women in being appointed as nikah registrars. However, since solemnisation of a marriage is not a legal duty of the registrars and can be done through other persons, a woman registrar can simply choose not to perform any religious rituals if she finds it necessary and can get the marriage solemnised through a local mosque's Imam or any of her office assistants during menstruation. Menstruation thus cannot be a question to be relevantly asked when appointing a nikah registrar whose duty, even as the preamble of the 1974 Act depicts, is simply to "register Muslim marriages and divorces".
Our Constitution guarantees equality before the law and protects against discrimination on the basis of gender. We believe that our apex court would continue upholding those constitutional guarantees and guide our efforts in ensuring equal status for women towards a more progressive path.
Taslima Yasmin teaches at the Department of Law of the University of Dhaka. Email: firstname.lastname@example.org.