ILAVARASAN versus THE SUPERITENDENT OF POLICE & ORS.

Heard learned counsel for the parties, with their consent.

p. 326

The brief facts are that the appellant had preferred a habeas corpus proceeding, alleging that he had married Mathithra in accordance with Section 7A of Hindu Marriage Act, 1955 and the same was solemnized under the aegis of Advocates and other social workers. He had alleged that she had been forcibly taken away, coerced into marrying her maternal uncle, after which she was restrained at the behest of her parents. The appellant alleged that Mathithra was detained or restrained against her will. The High Court dismissed the petition and recorded comments adverse to the conduct of Advocates, stating that they are incapable of certifying marriages under Section 7A of the Hindu Marriage Act, 1955 (as amended and applicable in Tamil Nadu). The appellant, aggrieved by the impugned order, has approached this Court.

pp. 326–327

This Court had by its order dated 04.08.2023 directed that the concerned District Legal Services Authority to facilitate recording the statement of the alleged victim, Mathithra. Pursuant to the directions, the concerned Legal Services Authority and the District Judge, Ramanathapuram facilitated the process. The report furnished by the Secretary, District Legal Services Authority, Ramanathapuram, Tamil Nadu was forwarded by the District Judge, through letter dated 12.08.2023. The report of the Secretary, District Legal Services Authority pertinently states as follows: “I humbly submit that, I examined the alleged victim Mathithra with the assistance of Lady Judicial Magistrate. From my examination it reveals that, alleged victim Mathithra married one Elavarasan S/o. Vellaidurai, on her own will and she is residing with the said Elavarasan at Madurai, Othakadai, Anubunagar on her own volition. Further my examination reveals that, she was earlier married to her maternal uncle Thiru. Vijayan at the age of sixteen, against her wishes and she was compelled by her parents and relatives to live with him. Now the alleged victim wants to reside with Elavarasan at later’s residence at Door no. 221, North street, Morpannai, Uppur, Ramanathapuram District.”

p. 327

A copy as well as the translated copy of the statement of Mathithra recorded by the Secretary, District Legal Services Authority under Section 164 Cr.P.C. has also been placed on the record. It confi rms the report. In the light of these developments, the Court is satisfi ed that Mathithra, in fact, wishes to reside with the appellant of own freewill. The respondents are directed to ensure that she in fact join the appellant.

p. 327

The above would have been dispositive of these proceedings. However, this Court notices that the High Court in the impugned orderfollowed a previous decision of a co-ordinate bench reported as “S. Balakrishnan Pandiyan v Inspector of Police” 2014 (7) MadLJ 651.

p. 328

The Madras High Court took note of the Tamil Nadu Amendment Act and the Hindu Marriage Act, especially Section 7A which dispensed with the necessity of solemnizing marriage in terms of the forms enumerated in other provisions of the Hindu Marriage Act and described a special procedure under the newly inserted provision (Section 7A). That provision merely required the intending spouses to declare and express to each other their willingness to take each other as spouses and symbolically garlanding each other and tying a “Thali”. The Court interpreted the procedure of declaration by the intending spouses “in the presence of relatives, friends or other persons”. The High Court was of the opinion that such marriages involved a public declaration: “We are very clear in our mind that even the protagonists of the Suyammariyathai/Seerthiruththa form of marriage did not visualize marriages being solemnized in secrecy. The very idea of performing marriages with celebration is to publicly declare the marital status of the parties. Even Thanthai Periyar used to conduct Suyamariyathai form of marriages publicly so that the world recognized the status of the couples. Hence, celebration of marriage is not antithetical to form of marriage. Therefore, we are of the opinion that a marriage conducted in secrecy with few strangers around, be it Suyammariyathai form, will not amount to solemnization, as required under Section 7 & 7-A of the Hindu Marriage Act.”

p. 328

This Court in “ S.Nagalingam vs. Shivgami” (2001) 7 SCC 487, had upheld Section 7A inserted in the Tamil Nadu Amendment Act, declaring as follows: “Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the performance of a valid marriage. Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes the other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any fi nger of the other or tie a thali. Any of these ceremonies, namely, garlanding each other or putting a ring upon any fi nger of the other or tying a thali would be suffi cient to complete a valid marriage. Sub-section (2)(a) of Section 7-A, specifi cally says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnized after the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, shall be good and valid in law. Sub-section (2) (b) further says that notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, all marriages to which this section applies solemnized at any time before such commencement, shall be deemed to have been valid. The only inhibition provided is that this marriage shall be subject to sub-section (3) of Section 7-A. We need not elaborately consider the scope of Section 7-A (3) as that is not relevant for our purpose.”

pp. 328–329

The view expressed by the Madras High Court in S. Balakrishnan Pandiyan (Supra), in the opinion of this Court is erroneous. It is premised on the assumption that every marriage requires a public solemnization or declaration. In the opinion of this Court, such a view is simplistic because often due to parental or pressure among kinship groups, or caste/ 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. Doing so would imperil their lives or could in the very least likely 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 visualize other pressures being brought to bear upon two individuals, who are otherwise adults and have exercised their freewill. To superimpose the condition of a public declaration, which is absent in section 7A , in the opinion of this Court, 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. This Court has emphasized in more than one decision {Lata Singh v. State of UP, (2006) 5 SCC 475, Shafi n Jahan v. Asokan KM, (2018) 16 SCC 368, and Laxmibai Chandaragi B. v. The State of Karnataka (2021) 3 SCC 360} the right of individuals to exercise free choice and that it is an intrinsic part of the right of life. It is, therefore, held that view expressed in S. Balakrishnan Pandiyan (Supra) is erroneous. The same is, accordingly, overruled in Nagalingam (supra).

pp. 329–331

The Court also notices the observations made by the impugned order, with respect to the role of the advocates. The concerns voiced by the High Court are not entirely unfounded. Advocates or lawyers have many capacities- one being Offi cers of the Court. Therefore, they should not, while acting as counsel or advocates or their capacity as advocates, undertake or volunteer to solemnize marriages. That can well result in Advocates chambers or offi ces turning out to be matrimonial “establishment”- a consequence never intended- or perhaps never contemplated by law. However, in their capacity as friends or relatives of the intending spouses, their role as witnesses cannot be ruled out.

p. 331

The appeal is allowed in the above terms. Pending applications, if any, are disposed of.

p. 331