A nikah registrar has arguably the most essential duty i.e., to register a nikah with the relevant union council and to fill out its terms accurately. In the case of Muhammad Aslam v Suraya [1] the court recognized the fact that a Nikah Registrar under the Muslim Family Laws Ordinance is a public servant within the meaning of section 21 of the Pakistan Penal Code (PPC) and as such discharges a public duty [2]. It must be recognized that the importance of this duty stems from the fact that a Nikahnama is proof of marriage and more so, is an enforceable civil contract, emphasizing further the need for it to be registered properly and filled accurately with the wishes of the bride and bridegroom.
This article will thus explore the regulations under which a nikah registrar may be liable for non-registration and inaccurate filling of a nikahnama.
A Nikah registrar’s duty to register a nikah is laid down in Rule 7(4) of the West Pakistan Rules under the Muslim Family Laws Ordinance 1961 which states that “if any person to whom a license has been granted under this rule contravenes any of the conditions of such license, he shall be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to one hundred rupees or with both”.
The conditions of the license granted to the nikah registrar are stated in form I, the second condition of which states that “the license is revocable for breach of any of the provisions of the MFLO 1961 or the rules made thereunder or of any condition of this license”. Section 5(1) and (2) of the MFLO 196, read collectively, place an obligation on the Nikah registrar to register a nikah. Any time that a nikah registrar fails to do so, Rule 7(4) (stated above) is triggered and his license may be revoked for a breach of its conditions.
The same was also recognized in the case of Tahira Bibi v SHO [3] where the court on a combined reading of section 5 of the MFLO and rule 7(4), came to the conclusion that every marriage solemnized under Muslim Family Law is mandatorily registrable and the registration of marriage shall be under the provisions of the ordinance and the rules for which the union council has been authorized to issue a license to one or more persons. In the same case, the court went so far as to explain that the Nikah Registrar is under a duty to fill every column of the nikahnama accurately with specific answers of the bride and the bridegroom.
The importance of registration of the nikahnama is also evident from the fact that while there is federal legislation on the matter, provincial legislation has also been enacted. Section 3 of the Sindh Muslim Marriages and Divorces Registration Act 1995 states that “all marriages solemnized and divorces affected among Muslims in the province of Sindh after the commencement of this Act shall be registered in the manner hereinafter provided” [4].
section 4(1) of the same Act providing further guidance on registration states that “the provincial government shall by notification in the official gazette appoint as many qazis and for such territories as it may consider necessary to register marriages and divorces under this act” [5].
While the MFLO 1961 has limited itself to revocation of the Nikah Registrar’s license, Section 12 of this Act has gone one step further to attribute criminal liability in stating that, “any contravention of the provisions of this act shall constitute a criminal offense and shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to five hundred rupees or with both” [6]. This punishment further evidences the importance of the duty that has been placed on a nikahnama.
Liability For Inaccurate Filling
In its essence, a Nikah is a contract between two parties hence binding the two to the legal terms of the contract. Where such terms have been altered without their wish or information, it interferes with the free will and integrity of the parties.
In Pakistan, clauses 17 (special conditions), 18 (talaq-e-tafweez), and 19 (limits on the unilateral right of divorce of the husband) of the Nikahnama are usually cut off by the Nikahkhawa or the registrar before the Nikahnama comes to the family or the bride and groom not even giving the parties the opportunity to fill it out themselves. It is a cultural practice and general assumption that both bride and groom do not want to add any specific conditions to the Nikahnama.
A study on Woman’s Marriage, conducted in Punjab in 2023 by the Center for Human Rights in collaboration with Musawi and the National Commission for Human Rights, revealed that 86% of nikah registrars in Lahore believe that the bride is not competent enough to negotiate the terms of her Nikahnama and so fail to fill it accurately, meanwhile, 85% believe that delegating the right to divorce will increase the divorce rate.
In Shah Din and others v the state, [7] the Lahore High Court directed the Nikah registrars to not simply fill in the columns of the Nikahnama in routine but realize that the duty they were required to perform was very sacred. In this case, the nikah registrar failed to comply with the requirements of the law and also failed to attain attestation of witnesses and spouses.
The high court also asked the union committee whether the registrar was a fit and proper person for the job.
In Muhammad Aslam v Suraya, [8] the court recognized the significance of the terms of the nikahnama and held that if any party was of the view that the nikah registrar had interpolated the entries of the Nikah register, such party could approach the deputy commissioner, who was the controlling authority, and get the same corrected.
In addition to the judicial and legislative importance of the matter, the same can also be derived from the Quran at 11:282, which broadly emphasizes the significance of writing down the terms of what is contracted. While the verse does not talk specifically of a marriage contract, an inference can be drawn nonetheless because if importance is given to writing down everyday agreements, accurately writing down the terms of something as essential as a nikahnama (proof of marriage) becomes that much more important.
To further emphasize the importance of the public and moral duty that is placed on a Nikah Registrar, the High Court in the case of Wasif Ali v Fakhra Jabeen, [9] directed the federal and provincial government to prescribe minimum education qualifications for the grant of license of the Nikah registrar under the MFLO 1961. This further ensures that people responsible for carrying such a burden are competent for the same.
Moreover, the matter has also been taken up on a provincial level. While the provincial counterpart of this judgment does not expressly state the duty of a nikah registrar to accurately fill out the terms of the nikahnama, an amendment was brought in 2015 pertaining specifically to Punjab. This amendment, among other provisions, amended s.5 of the MFLO to include subsection (2A) [10]. This amendment crystalizes the nikah registrars’ duty to accurately fill out the columns of the nikahnama according to the wishes of the bride and groom.
Conclusion
In conclusion, the role of a Nikah Registrar under the Muslim Family Laws Ordinance is one of significant legal and public responsibility. The obligation to accurately register and fill out a Nikahnama stems from federal and provincial laws, which recognize the Nikah as a religious contract and a binding civil agreement. Where such duty has been neglected or breached, one must understand the gravity of the consequences. The legal framework, as reflected in cases like Muhammad Aslam v. Suraya and Tahira Bibi v. SHO cited above, makes it clear that failure to register or accurately complete a Nikahnama can lead to the revocation of the registrar’s license and, in some jurisdictions, criminal liability.
References
[1] Muhammad Aslam v Suraya PLD 2000 Lahore 355
[2] Pakistan Penal Code, Section.21 (Fourth) “Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court ; and every person specially authorized by a Court of Justice to perform any of such duties”
[3] Tahira Bibi v SHO 2019 Writ Petition No.15567
[4] Sindh Muslim Marriages and Divorces Registration Act 1995, Section 3
[5] Sindh Muslim Marriages and Divorces Registration Act 1995, section 4(1)
[6] Sindh Muslim Marriages and Divorces Registration Act 1995, Section 12
[7] Shah Din and Others v The State PLD 1984 Lahore 137
[8] Muhammad Aslam v Suraya PLD 2000 Lahore 355
[9] Wasif Ali v Fakhra Jabeen 2023 CLC 1021 LHC
[10] Muslim Family Laws Ordinance 1960, Section 5(2A)