Orissa High Court
Md. Usman Khan vs State Of Odisha & Ors. ..... Opp. Parties on 8 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) NO. 17429 OF 2025,
WP(C) NO. 43137 OF 2023,
WP(C) NO. 708 OF 2024,
WP(C) NO. 1785 OF 2024,
WP(C) NO. 17936 OF 2025,
AND
WP(C) NO. 19436 OF 2025
In the matter of applications under Articles 226 & 227 of the Constitution
of India.
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In WP(C) NO. 17429 OF 2025
Md. Usman Khan ...... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
Advocate(s) appeared in this case:-
____________________________________________________________
For Petitioner : M/s. R.C. Jena & M.Padhi, Advocates
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
____________________________________________________________
In WP(C) NO. 43137 OF 2023
Murad Ali Khan ...... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
Advocate(s) appeared in this case:-
Page 1 of 12
____________________________________________________________
For Petitioner : Mr. B. Bhuyan, Sr. Advocate
with Mr. Md. Gulam Madani, Advocate
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
____________________________________________________________
In WP(C) NO. 708 OF 2024
Sayed Farooque Raza ...... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
Advocate(s) appeared in this case:-
____________________________________________________________
For Petitioner : Mr. B. Bhuyan, Sr. Advocate
with Mr. Md. Gulam Madani, Advocate
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
____________________________________________________________
In WP(C) NO. 1785 OF 2024
Md. Akhter Ahemed ...... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
Advocate(s) appeared in this case:-
____________________________________________________________
For Petitioner : M/s. U.C. Mishra, A. Mishra, J.K. Mahapatra,
D. Debadarshani & S. Dash, Advocates
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
____________________________________________________________
Page 2 of 12
In WP(C) NO. 17936 OF 2025
Sk. Saeed ...... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
Advocate(s) appeared in this case:-
____________________________________________________________
For Petitioner : M/s. R.Jena & M. Padhi, Advocates
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
____________________________________________________________
In WP(C) NO. 19436 OF 2025
Moulana Sk. Abdul Gani ...... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
Advocate(s) appeared in this case:-
____________________________________________________________
For Petitioner : M/s. P. Pattnaik, K.N. Muduli, D. Sahoo &
S.K. Swain, Advocates
For Opp. Parties : Mr. S.K. Jee,
Addl. Government Advocate
CORAM:
HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
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Date of hearing & judgment : 08.09.2025
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Page 3 of 12
PER DIXIT KRISHNA SHRIPAD,J.
All these petitions, by the teachers of Government/Aided
Schools, are presented to the Writ Court essentially grieving against the
decision of answering OPs in revoking/rescinding licenses granted to them
for registering Muslim marriage/divorce and for maintaining certain
official records in that connection, as provided under the provisions of
Orissa Muhammedan Marriage and Divorce Registration Act, 1949 and
Orissa Muhammedan Marriage and Divorce Registration Rules, 1976.
2. Learned advocates appearing for the petitioners vehemently argue
that the impugned action is unsustainable, inasmuch as their clients have
been discharging the statutory duties, as licensees under the 1949 Act read
with 1976 Rules, since years without compromising their duties as
teachers; there is absolutely no complaint from any quarters in general and
from the community of taught in particular; all of a sudden the impugned
decision has been taken on an erroneous assumption to the contrary; there
is absolutely no prohibition either in the 1949 Act or in any other statute,
including the Conduct Rules, and therefore, the impugned decision in
cutting short their rights needs to be voided, coupled with a direction to
continue/renew their licenses. Learned advocates took the Court through
the provisions of 1949 Act, 1976 Rules & also the Conduct Rules
applicable to Government servants.
3. Learned AGA appearing for the OPs vehemently resists the petitions
making submission in justification of the impugned decision and also the
rationale, on which it has been taken. He contends that the impugned
decision is not punitive; petitioners being the public servants and more
particularly civil servants of the State holding public office of teacher, and
they are drawing salary in the prescribed pay scales; the registration of
Muslim marriages & divorces and maintaining the official records in that
connection would certainly affect discharge of their duties as teachers and
that, in turn, would make adverse impact on the interest of pupils. So
contending he seeks dismissal of writ petitions.
4. Having heard the learned counsel for the parties and having perused
the petition papers, this Court declines indulgence in the matter for the
following reasons:
4.1. A THUMB NAIL DESCRIPTION OF STATUTORY FRAME
WORK:
(i) The 1949 Act was enacted by the State Legislature providing „for the
voluntary registration of Muhammedan marriages & divorces‟. It is a short
enactment comprising of 27 Sections and a schedule. Section 1(2) of the
Act extends the same to the entire State and it came into force advance.
Section 2 is the dictionary clause of the Act; it has only 4 items, which are
not relevant to the case at hand. Section 3 provides for grant of license to
any person, who is a Muslim, and thereby authorizes him to register
Muslim marriage and divorce. For that, an application shall be made to
him. Government has also power to revoke or suspend such license.
Section 6 enjoins the duty to these licensees to keep up certain books and
registers relating to marriage and divorce. This stationery is provided by
the State Government under Section 5.
(ii) Sections 8 & 9 of the Act prescribe the modalities, powers and
procedures for registration of marriage/divorce. Section 10 enables
Muhammedan Registrar to receive gratuity, in excess of the fee, if
voluntarily tendered. Section 11 specifies the persons, who have to sign in
the forms prescribed in the Schedule to the Act. Section 12 states that
copies of entries to be furnished to every applicant for registration, free of
cost. Section 13 provides for indexing of registers and section 14
prescribes what these indices should contain. Section 15 provides for
inspection of registers and taking up copies of entries, which shall contain
seal and signature of these registrars. Section 16 prescribes fees in that
connection. Section 17 vests supervisory control in the District Registrar
over the Muhammedan Registrar.
(iii) Section 18 provides for general superintendence at the hands of
Inspector General of Registration and he is empowered to make regulations
for the guidance of these registrars. However, approval of the State
Government is prescribed as a pre-condition for their taking effect. Section
20 provides for refusing to register marriage/divorce for reasons to be
recorded in the prescribed book. Section 21 provides for appeal against the
same. Sections 22 & 23 provide for up-keeping of registers and making
them over to the Registrars of Districts by these Registrars. Section 24
delegates rule making power to the State Government. Section 25 makes
Muhammedan Registrars public servants and their duty to be public duties.
Section 26 is validation provision and Section 27 provides for repeal and
savings.
(iv) The State Government has promulgated 1976 Rules in exercise of
power under Section 24 of the Act. Rule 2A(1), with effect from
18.09.2006, is brought on the Rule Book and it prescribes a limitation
period of thirty days for the registration of marriages. Rule 2A(2) provides
for delayed registration of marriage/divorce with a penalty of Rs.20/-. Rule
3 prescribes certain qualifications for becoming Muhammedan Registrar.
He should have acquaintance with the Arabic language and Muhammedan
law of marriage and divorce; he should have good moral character. It also
gives a list of Muhammedans, who will have preference for the
post/privilege in question.
(v) Rule 4 empowers the District Registrar to nominate Muhammedan
Registrars for issuing license. Rule 5 prescribes modalities of application
for such nomination. Under Rule 7, the District Registrar has to forward
the applications and its accompaniments to the State Government, which
takes a decision to issue license. Rule 8 empowers the Government to
prescribe examination to the licensees or to the applicants in matters, such
as Arabic language, Muhammedan law of marriage and divorce, etc.
Licenses will be granted in From-B, says Rule 9. Rule 10 provides for
Muhammedan Registrar to give up his license after reporting to the
Inspector General of Registration through the District Registrar. Rule 12
speaks of leave and absence. Rule 14 specifically states that these persons
are not Government servants.
(vi) Rule 16 enlists the register/books to be furnished to the
Muhammedan Registrars along with seal and ink from the Government
stores at cost price. Rule 18 prescribes table of fees and Rule 19 enables
Muhammedan Registrars to retain their lawful remuneration from the fees
received. Rest, he has to remit to the District Registrar, who, in turn, shall
credit it to the Government. Rules 20 to 31 provide for elaborate procedure
for application, attendance of parties and registration of marriage/divorce.
Rule 32 empowers Muhammedan Registrar to effect corrections of errors
in the registers with his endorsement on the margin. Rule 34 specifies the
circumstances wherein registration may be refused. Rule 36 mandates
furnishing of reasons for such refusal to register. Rules 37 & 38 provide for
refund of fees paid under Section 9 in certain circumstances.
(vii) Rules 39 to 47 mention about maintenance and destructions of
Registers/Records and indices by Muhammedan Registrars and District
Registrars, with the previous sanction of the Inspector General. Rule 48
provides for applications for search in the records and for copies of
extracts. Procedure is also prescribed therein. Rule 49 empowers the Court
for summoning of Registers/Records and inspection by Government
Officers. The production of Registers/Records before the Court shall be by
the Muhammedan Registrars or any Officer as may be deputed by the
District Registrar.
4.2. MUHAMMEDAN REGISTRARSHIP, RIGHT OR
PREVILEGE:
(i) The text and context of Section 3 of the Act does not give any
absolute right to get license and thereby become Muhammedan Registrar
of marriages/divorces. The section employs the term "It shall be lawful for
the State Government to grant a license to any person....". This expression
is explained by the English Court in Julius v. Bishop of Oxford;1 wherein
it has been observed as under:-
"The words „it shall be lawful‟ are not equivocal. They are
plain and unambiguous. They are words merely making that
legal and possible which there would otherwise be no right
or authority to do. They confer a faculty or power, and they
do not of themselves do more than confer a faculty or
power."
1880-5 AC 214
(ii) The expression "to any person" is of a wider expanse and choice lies
with the Government. Rule 3 of 1976 Rules accords preference to ex-
Kazis, Muslim Government pensioners, Maulavies, Khandkars & Mullas.
Therefore, the serving Government servants, such as the petitioners cannot
claim license as a matter of right. The Government has abundant
discretion. Of course, the same has to be exercised in accordance with
Rules of Reason and Justice. The vehement submission of learned
advocates appearing for the petitioners that their clients have been
discharging the duties as Muhammedan Registrars of marriage/divorce
since very long, does not create any vested right for renewal or extension.
After all, a license of the kind does not create any interest in any office. It
is more or less a matter of privilege.
4.3. MUHAMMEDAN REGISTRAR BEING A PUBLIC
OFFICER/OFFICE:
(i) The text and context of various provisions of the Act and the Rules
leave no manner of doubt that the Registrar of Muhammedan
marriages/divorces holds a public office, to which certain powers and
duties are attached. This is not only not disputed by the petitioners but
asserted. The functions of this office have implications on the status of
parties to the marriage or divorce, as the case may be. A public office like
that of Muhammedan Registrar may not be an office of profit in the light of
Election Jurisprudence; however, nevertheless, it is a public office. Section
25, which has the following text, adumbrates this view:-
"Every Muhammedan Registrar shall be, and be deemed to
be, a public servant and his duties under this Act shall be
deemed to be public duties."
(ii) Several onerous duties are attached to the Office of Muhammedan
Registrar. As already mentioned, his functions have far reaching
evidentiary consequences on the status of marriage/divorce of
Muhammedans. In registering marriage/divorce or refusing to register, he
exercises quasi-judicial power vide Section 9 of the Act read with Rules
26, 27, 34, 35, 36 & 37 of 1976 Rules. These Registrars work under the
supervision of District Registrars and the Inspector General of Registration
to whom they are answerable. They have to maintain and update several
Registers/Books. They have to examine parties and witnesses. At times,
they have to travel to other places for the discharge of their duties. Rule 49
provides for their personal appearance along with Registers/Records, if the
Courts summon them. That being the position, how will they be able to
discharge their duty as teachers with absolute commitment in the
Government Schools, is a big question. Teaching is a noble profession. It is
teachers in general and primary/secondary school teachers in particular,
who inculcate civilizational values & culture in the young minds.
Therefore, our ancient scriptures chant „Guru Saakshaat Parabrahma‟
literally likening teacher to God. As such, the impugned decision of the
Government, regardless of certain arguable defects therein, cannot be
faltered.
4.4. The vehement submission of learned counsel for the petitioners that
the OCA (CCA) Rules, 1969 nor the 1949 Act nor 1976 Rules prohibit the
serving Government servants from becoming Muhammedan Registrars of
Marriage/Divorce and therefore, the impugned order is vulnerable for
challenge, cannot be countenanced. The Government is the appointing
authority for the posts of teacher in its schools. Again, it is the
Government, which is empowered to grant license to become
Muhammedan Registrars. It has first-hand experience and information as
to the nature of functions the teachers do and the Muhammedan Registrars
accomplish. Government, in its accumulated wisdom, is of the opinion that
the performance of teaching would be materially affected, if teachers
become Muhammedan Registrars. A Writ Court cannot run a race of
opinions with the Executive. It has to respect the decisions of co-ordinate
organs of the State consistent with the Doctrine of Separation of Powers,
which is held to be a basic feature of the Constitution, vide Keshavananda
Bharati v. State of Kerala,2.
4.5. The vehement submission of learned counsel appearing for the
petitioners that the impugned order proceeds on a wrong legal premise that
the presence of Kazi is sin qua non for a valid Muslim marriage, is
arguably true. Such a sentence appears in the impugned order. Fizee in
Outlines of Muhammadan Law, First Edition 1949, Oxford Publication at
para-7 says:
"Marriage may be constituted without any ceremonial; there
are no special rites, no proper officiants. The essential
requirements are offer (ijab) and acceptance (qubul)....As to
the form, the following conditions are necessary: (1)
declaration or offer (ijab) on the part of the one; (2)
acceptance (qubul) by the other (or by guardians, as the case
may be); (3) before sufficient witnesses (i.e. in Hanafi law,
two; in Shiite law witnesses are not necessary)...The kazi is
ordinarily present. The kazi in India is the mere keeper of a
register of marriage. His function is purely evidentiary. It is
a mistake to suppose that he joins the couple in marriage; the
marriage takes effect on the contract being completed
between the parties."
AIR 1973 SC 1461
Merely because certain wrong things are mentioned by the authorities, their
decisions, that are otherwise valid in their purport & intent, cannot be
invalidated. A decision being wrong per se does not make it unsustainable,
the issue of sustainability being central point of adjudication. It hardly
needs to be stated that what ordinarily the Writ Court focuses, is the
decision making process and not decision itself. More is not necessary to
specify.
4.6. There is one more aspect to the matter: all these petitioners are
admittedly civil servants and they are in permanent employment with
settled families. They are drawing salaries regularly in attractive pay
scales. It is not their case that what is being taken by them is insufficient
for the livelihood of their families, and that they would have extra income
if they are permitted to function as Muhammadan Registrars. On the other
side of the spectrum, they have been thousands of persons in the Muslim
Community, who do not have employment or that they are underemployed.
Such persons may be preferred for the grant of license to function as
Muhammadan Registrars of marriage & divorce, so that a penny or two
would fall into their pockets on discharge of duties. That would be
consistent with the idea of distributive justice enacted in Article 39(b) & (c)
of the Constitution of India.
In the above circumstances, these petitions, being devoid of
merits, are liable to be dismissed and accordingly they are, costs having
been made easy.
....................................
Designation: ASST. REGISTRAR-CUM-SR. SECRETARY
Judge
Orissa High Court, Cuttack,
Reason: Authentication
Location: HIGHThe 8th September,
COURT OF ORISSA :2025/Prasant/Basu
Date: 11-Sep-2025 18:49:30
CUTTACK
