Since Section 7A of the Hindu Marriage Act (Tamil Nadu Amendment, 1967) itself waives the requirement of solemnisation of marriage before the public, the advocates can, in their capacity as friends or relatives, volunteer to solemnise marriage.
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THE Supreme Court has held that advocates in their capacity as friends or relatives of the intending spouses can undertake or volunteer to solemnise marriages.
A Bench comprising Justices S. Ravindra Bhat and Arvind Kumar passed an Order to this effect on August 28.
The Bench was hearing a petition filed against the Madras High Court which dismissed a habeas corpus petition filed by the husband and referred the matter to the Bar Council of Tamil Nadu to initiate disciplinary action against the advocates before whom marriage was performed.
Facts
The petitioner-husband Ilavarasan married one Mathithra in accordance with Section 7A of the Hindu Marriage Act, 1955 [as amended by the Hindu Marriage (Tamil Nadu Amendment) Act, 1967].
The marriage was solemnised by advocates and other social workers.
The petitioner alleged that Mathithra had been forcibly taken away and coerced into marrying her maternal uncle, after which she was restrained at the behest of her parents.
Section 7A applies to marriage between two Hindus solemnised in the presence of relatives, friends or other persons. As per the provision, the presence of a priest is not mandatory for the performance of a valid marriage.
The provision merely requires the intending spouses to declare and express to each other their willingness to take each other as spouses and symbolically garland each other and tie a “thali”.
The provision has been upheld by the division Bench of the Supreme Court in S.Nagalingam versus Sivagami (2001).
On August 4, 2023, the Supreme Court directed the District Legal Services Authority to facilitate recording the statement of Mathithra. In her statement, she expressed a wish to reside with the petitioner of her own will.
The Bench taking into consideration the statement of the victim, directed the police to ensure that Mathithra is allowed to join the petitioner.
The Bench also held the ruling of the Madras High Court in S. Balakrishnan Pandiyan versus Inspector of Police, which held that every marriage requires a public solemnisation or declaration, is erroneous.
“The view expressed by the Madras High Court in S. Balakrishnan Pandiyan is erroneous. It is premised on the assumption that every marriage requires a public solemnisation or declaration.
“Such a view is simplistic because often due to parental or pressure among kinship groups, or caste and community institutions, couples intending to enter into matrimony may not be able to, for the reasons of such opposition— hold or give such a public declaration,” the Bench held.
The Bench also held that public declaration could imperil the lives of couples or could result in danger to their bodily integrity or at worst, a forceable or coerced separation of one from the other.
“It is not hard to visualise other pressures being brought to bear upon two individuals, who are otherwise adults and have exercised their free will.
“To superimpose the condition of a public declaration, which is absent in Section 7A, it is not only narrowing the otherwise wide import of the statue but also would be violative of the rights under Article 21 of the Constitution of India,” the Bench ruled.
The Bench warned that advocates should not volunteer in their capacity as advocates, as it can result in turning an advocate’s chambers or offices into a matrimonial establishment, which the legislature never intended or perhaps never contemplated.
