Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Upholding the fundamental right of a person to choose a life partner, the Supreme Court on 28/08/2023 overruled a Madras High Court judgment which held that the marriages performed in the offices of the Advocates are not valid as per the Hindu Marriage Act 1955.
The case before the Supreme Court was based on the self-marriage system as per Section 7A, which was inserted in the Hindu Marriage Act by a Tamil Nadu Amendment. According to this Section, two Hindus can marry without following rituals or without solemnization by a priest by declaring marriage in the presence of their friends or relatives or other persons.
In 2014, a division bench of the Madras High Court in S. Balakrishnan Pandiyan v Inspector of Police held that marriages performed by the advocates are not valid and that Suyammariyathai marriage (self-respect marriage) cannot be solemnised in secrecy. Following this ruling, on May 5, 2023, the Madras High Court in Ilavarsan v The Superintendent of Police and Others refused to rely upon a self-respect marriage certificate issued by an advocate and dismissed a habeas corpus petition filed by a man who alleged that his partner was under illegal detention of her parents. Not only that, the High Court also directed that the Bar Council should initiate disciplinary action against advocates who issue such "fake marriage certificates". Aggrieved by this judgment, the petitioner approached the Supreme Court.
Considering the special leave petition, a bench comprising Justices S Ravindra Bhat and Aravind Kumar disagreed with the view expressed in Balakrishnan Pandiyan which was followed in Ilavarasan.
For context, Section 7A of the Hindu Marriage Act (as applicable in Tamil Nadu) is extracted as follows :
“Section 7-A: Special Provision regarding suyammariyathai and seerthiruththa marriages
(1)This section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons--
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife, or as the case may be, her husband; or
(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
(c) by the tying of the thali."
The Supreme Court noted at the outset that Section 7A was upheld by the Top Court in Nagalingam v Shivgami(2001) 7 SCC 487. It further observed that the view in Pandiyan was based on an assumption that every marriage requires a public solemnisation or declaration.
entirely unfounded.
"Advocates have many capacities. They are officers of the court. While acting as counsel/advocate, they should not undertake or volunteer to solemnize marriages. However, in their private capacity as friends as relatives, their roles as witnesses cannot be ruled out".
Coming to the facts of the case, the Court had earlier called for a report from the District Legal Services Authority regarding the stand of the woman. The woman gave a statement that she wished to live with the petitioner. Based on this report, the Court allowed the petition and set aside the High Court judgment.
Case title: Ilvarasan v. Superintendent of Police 2023 SC
