The Assam government on Friday repealed the Assam Muslim Marriages and Divorces Registration Act, 1935. Its stated aim for this move was to curb child marriages among Muslims in the state.

However, legal experts that Scroll spoke to refuted the government’s rationale. Child marriage is already outlawed under a central law called the Prohibition of Child Marriage Act, 2006. According to them, the repeal would lead to confusion since Muslim marriages would now be registered by officers appointed under the Special Marriage Act who may not be well-versed with Muslim personal law practices.

While the Assam government has also stated that this was the first step on the road to a uniform civil code in the state, for now, Muslim marriages will still be governed by Muslim personal law.

Child marriage curb?

According to Assam Chief Minister Himanta Biswa Sarma, the state cabinet repealed the 1935 act to prevent child marriages among Muslims in the state.

Since last year, Sarma’s government has launched a state-wide drive against child marriages as part of which it has arrested thousands of people. Police data seen by Scroll showed that districts with high Muslim populations have seen more arrests than others.

Section 8(1) of the 1935 act allows the registration of marriages involving minors. According to the experts that Scroll spoke with, the Assam government did not need to repeal the whole act if stopping child marriages was the only objective. Advocate Haamim KJ Ahmed, who practises at the Guwahati High Court, said that the government could have simply amended section 8(1) of the 1935 act.

Moreover, even with this section on the books, child marriage had already been barred by other laws. Guwahati-based senior advocate Hafiz Rashid Ahmed Choudhury pointed out that the Prohibition of Child Marriage Act, 2006, a central act, already forbids marriages involving minors across the country, rendering section 8(1) of the 1935 act nugatory.

He said that the reasons given by the state government for the repeal of the legislation were not accurate and driven more by competitive politics. “This has only been done to create an issue for the upcoming Lok Sabha election,” he said.

Uniform Civil Code

Assam minister Jayanta Malla Baruah has also claimed that the repeal of the 1935 act is a step towards the implementation of a uniform civil code in the state.

A Uniform Civil Code is a common set of laws governing marriage, divorce, succession and adoption for people of all communities. Currently, such personal affairs of different religious and tribal groups are based on community-specific laws, largely derived from religious scripture.

The repeal of this act, however, does not change the fact that Assam’s Muslims would still be under Muslim personal law. The Muslim Personal Law (Shariat) Application Act, 1937, which is a central law, prescribes that all Muslims in India would be governed by Muslim personal law. It will still apply to Assam. “Due to the 1937 central act, Muslims will continue to be governed by their personal laws,” Guwahati-based lawyer and former judicial officer Sarfraz Nawaz told Scroll. “The repeal of the act won’t make much of a difference to the practice of Muslim personal law.”

Nawaz said that without a uniform civil code, there is no logical basis for the repeal of the 1935 act. “The uniform civil code should have come first, then the 1935 act could have been repealed,” he said.

Marriage officers under Special Marriage Act

While the repeal does little to curb child marriage or bring in a uniform civil code, it would end up harassing the state’s Muslims by making it more difficult to register their marriages.

The 1935 act provided for the registration of marriages and divorces among Muslims in Assam by qazis, who are Islamic legal scholars and jurists. If the act is repealed, the registration of marriages and divorces by qazis will be done away. As a result, Muslims will have to register their marriages with officers appointed under the Special Marriage Act, 1954.

Experts pointed out that complications might arise due to this. Since the Special Marriage Act is only meant to register non-religious, secular marriages, marriage officers appointed under the act will have little familiarity with Muslim personal law. “Will customs prevalent in Muslim marriages be followed by the marriage officer under the Special Marriages Act?,” Ahmed asked.

He said that under Muslim family law, it is customary for there to be a formal proposal of marriage and its acceptance by two witnesses. The groom also pays a certain amount to the bride, mutually agreed upon by both, called the mehr, at the time of marriage. Ahmed was unsure whether marriage officers will comply with these requirements.

“There is no registrar or marriage officer in Muslim personal law,” Choudhury also pointed out.