Notaries Executing Marriage And Divorce Deeds Will Tantamount To Misconduct: Ministry Of Law & Justice

In an official memorandum issued by the Ministry of Law & Justice (MoL&J), Department of Legal Affairs (Notary Cell), the Government of India clarified the function and scope of duties of the Notaries. The memorandum specifically addresses the unauthorised execution of marriage and divorce deeds by Notaries, clarifying the position under the Notaries Act, 1952, (the Act) and the Notaries Rules, 1956 (the Rules).

The memorandum, signed by Rajeev Kumar, Deputy Secretary to the Government of India, was circulated to all Notaries appointed by the Central Government to “desist themselves from executing marriage or divorce deeds as they are not appointed as Marriage Officers. Such actions on their part are against the extant law. Any omission or commission of the Notaries Act, 1952 or the Notaries Rules, 1956 in this regard on the part of any Notary will tantamount to misconduct and action will accordingly be taken against such Notary in accordance with the provisions contained in Notaries Act, 1952 and Notaries Rules, 1956.”

It was clarified that only Marriage Officers appointed by the government were authorised to register marriages or divorces. Notaries, however, were not designated as such officers and therefore could not certify marriages, issue marriage certificates, or execute divorce deeds.

The memorandum also referred to a decision by the Orissa High Court in Partha Sarathi Das v. State of Orissa which held that Notaries are not empowered to act as Marriage Officers.

“It is clear from the plain reading of Section 8 of the Notaries Act, 1952 and sub-rule (8) of Rule 11 of the Notaries Rules, 1956 that execution of marriage or divorce affidavit is not the function of the Notary. The functions of Notaries as envisaged in Section 8 of the Notaries Act, 1952 and sub-rule (8) of Rule 11 of Notaries Rules, 1956 do not authorise any Notary to notarise an affidavit of marriage or divorce. Neither the Notary is authorized to certify the marriage nor competent to execute the divorce deed under the Notaries Act, 1952 and the Notaries Rules, 1956. A Notary has not been appointed as a Marriage Officer,” the memo clarified.

It was noted that despite the established legal position, some Notaries were executing documents regarding marriage, divorce, etc. “Further, some Notaries are also issuing Marriage Certificates and allowing the execution of declarations of marriage between the parties, which has far-reaching consequences,” the memo stated.

The Ministry clarified that an act or omission on the part of any Notary in respect of any provision of the Act or the Rules would be seen as professional misconduct and “the Notary concerned will render himself/herself liable to be dealt with in accordance with the provisions contained in Rule 13 of the Notaries Rules, 1956 and action may also be taken against him/her by the appropriate Government under sub-rule (12) (b) of Rule 13 of the Notaries Rules, 1956 and sub-section (d) of Section 10 of the Notaries Act, 1952.”

The memorandum also noted that the Supreme Court in its recent judgment in Bhagwan Singh v. State of U.P. emphasised that any violation of the Notaries Act would be seen as rendering the individual unfit for the role of a Notary.

The memo also stated that the “names of such Notaries who have been found to be guilty of professional or other misconduct rendering them unfit to practise as Notaries may also be removed from the Register of Notaries by an order of the appropriate Government in pursuance of the provision contained in sub-section (d) of Section 10 of the Notaries Act, 1952.”

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