The case for reforming nikkah registration

Free consent is a fundamental principle in the legitimacy of any agreement, particularly in the institution of marriage. In Pakistan, the registration of marriages, or nikahs, must prioritize the mutual consent of both parties and involve credible authorities to ensure transparency and prevent coercion. Undoubtedly, nikkahnama and the Nikkah registrar are important tools with respect to registration of nikah. However, there are various loopholes and issues associated with these tools, which ultimately lead to several procedural deficiencies. There is no denial of the fact that numerous rights and duties are born as the result of matrimony; therefore, the procedure that revolves around the same needs to be efficient and effective in guarding against possible disputes or infringement of the rights of the parties involved.

The Courts have repeatedly upheld the importance of the Nikkahnama by terming it a ‘public document’ with a strong ‘presumption of truth’ attached to it. In the case of Nazish Ishaq v Additional District Judge Liaquatpur, the respondents argued that the Nikahnama is not a public document. However, the Court disagreed and stated that the transfer of property by way of dower at the time of marriage was not a sale. Therefore, entries in the Nikahnama showing the transfer of property in lieu of dower would be sufficient evidence of the events and arrangements agreed upon by the parties. Since it was not a sale, it did not require registration. This case demonstrates the importance of the entries in the Nikkahnama. Therefore, the registration process of the Nikkahnama and its entries should be verified and authenticated by a higher and responsible authority who is less susceptible to pressure or bribery, similar to the registration of agreements concerning immovable property.

Free consent, defined as an agreement made without coercion, fraud, undue influence, or misrepresentation, is crucial in Islamic law for the validity of a marriage. The Qur’an emphasizes mutual agreement and consent, underscoring the ethical and religious imperatives against forced marriages: “O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good.” (Qur’an 4:19). This verse highlights the necessity of free and voluntary consent in marriage, a principle that must be upheld in both spirit and practice.

Despite the religious and legal emphasis on free consent, significant flaws in Pakistan’s marriage registration system undermine, inter alia, this principle. According to Rule 7 of the Muslim Family Law Rules, 1961, there are no stringent eligibility criteria for appointing a Nikkah Registrar. Astonishingly, even illiterate individuals can be licensed to act as Nikkah Registrars, who act as public servants. This opens the door to potential abuses, including forced marriages and fraudulent registrations. In fact, the eligibility criteria for the appointment of a peon in a public office are stricter than those for Nikkah Registrars.

Nikkah Registrars are entrusted with pivotal responsibilities, including verifying the identities of the bride and groom, ensuring voluntary consent, recording the terms of the nikah nama, and registering the marriage. However, the current lack of qualification requirements compromises the integrity of this role, risking the validity of the marriage process. To address these issues, it is proposed that the registration of marriage in Pakistan should involve a higher authority, such as a magistrate or sub-registrar or an equivalent officer. They would ensure that both parties, bride and groom, appear in person with witnesses in their office, provide pre-marital medical reports issued by a government hospital, and have the terms of the Nikkah nama read to them in the presence of witnesses. Explicit consent of both parties would be obtained and documented, with signatures verified by the magistrate or sub-registrar. It is important to note that this procedure is followed in an Islamic country, Saudi Arabia. Why can it not be followed in the Islamic democratic state of Pakistan?

Implementing this reform would yield significant benefits. Many issues related to the entries in the nikah nama could be avoided in their initial stages if the procedures regulating these matters are made stricter. Involving a magistrate or sub-registrar would ensure that both parties consent freely, thereby reducing the incidence of forced marriages. Higher standards of verification and documentation would decrease the potential for fraudulent marriages, especially in abduction cases. This reform would also reduce the burden on courts by minimizing litigation, alleviate the difficulties faced by parties, particularly the wife, who is often the most vulnerable, and enhance the authenticity and legal standing of the nikah nama to match that of other registered documents. Accurate registration of marriages would improve record-keeping and data collection, aiding in social and legal planning.

Implementing such reform in Pakistan requires several steps. Legislative reform is needed to amend the Muslim Family Law Ordinance, 1961, and the Muslim Family Law Rules, 1961, to establish qualification criteria for Nikkah Registrars and mandate the involvement of magistrates or sub-registrars in the marriage registration process. New legislation should outline the duties and responsibilities of magistrates or sub-registrars and establish penalties for non-compliance and fraudulent practices. Additionally, training programs are essential to ensure that Nikkah Registrars understand the legal and ethical requirements of their role.

Thus, we call for change. We call for legislation. It is late, yes, we are already late. But, it is never too late.

Milhan Sarfraz is a human rights activist and social worker focusing on gender-based violence and the welfare of women in Pakistan.