ULTRA VIRES TO THE CONSTITUTION OF INDIA
3 years ago
By published Notification dated 10.01.2013, I have been duly appointed as Muhammadan Marriage Registrar for Bhagwangola PS area for the purpose of the registration of ALL Muhammadan Marriages and Divorces of the locality where there is no Shia Muhammadan Community resides. without ascertaining whether on which sect I belong to, the Dist. Registrar illegally issued a Notification dated 25.08.2017 inviting applications for TEMPORARY appointment of Muhammadan Marriage Registrar for SHIA SECT within my said jurisdiction. On receipt of single application, the Dist. Registrar, Murshidabad issued the above Notice for a particular person and thereafter he did not widely publish in the newspapers. The Dist. Registrar, Murshidabad has no authority to issue Notice in terms of derogatory proviso to Section 3 of the Bengal Muhammadan Marriages and Divorces Registration Act, 1876. It may be mentioned here that there is no definite mechanism to determine SUNNI or SHIA Muhammadan and the Second proviso extended beyond the intension of the Legislature. Kindly advice me whether the proviso to Section 3 of the Act is unconstitutional or Ultra Vires to the Constitution of India? if yes, please advice me grounds of challenge. Advice me others point.`2
Your case needs to be studied in between the lines. Better approach local lawyer with all the relevant lawyers.
Tanmoy Chattopadhyay
Responded 3 years ago
Now coming back to the appointment of two registrar it is already provided in the first proviso and the second proviso states that the two must belong to different sect and since the later application is called for shia sect then you are automatically deemed to do the registration of sunni sect. That being the position in law I think you can continue with your job as you already said that there are no shia sect in your locality so you need not to worry much.
Third is your question about the validity of the notification issued by the district registrar. Since the original rules can be framed by the Inspector General of registration so you have to first consult the rules as framed by him as gazetted to know if the district registrar has been delegated the authority or not to know if the notification is valid or not.
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Sidhaarth
Responded 3 years ago
Per se, the Section 3 is not unconstitutional, but you can still challenge it on the grounds that it is arbitrary as there is no mechanism to define Sunni or Shia sect through a Writ Petition.
Ayantika Mondal @ Prime Legal
Responded 3 years ago
Per se, the Section 3 is not unconstitutional, but you can still challenge it on the grounds that it is arbitrary as there is no mechanism to define Sunni or Shia sect through a Writ Petition. The only ground that exist that challenges is the ground of Arbitrariness under Art. 14 of the Constitution.
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