ILAVARASANversusTHE SUPERITENDENT OF POLICE & ORS.

                  [2023] 15 S.C.R. 325 : 2023 INSC 813



                              CASE DETAILS

                               ILAVARASAN
                                       v.
             THE SUPERITENDENT OF POLICE & ORS.
            (Criminal Appeal No(s). 002752-002752 of 2023))
                                AUGUST 28, 2023

       [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
                               HEADNOTES
      Issue for consideration: Issue arose as regards the conduct of
advocates as to whether they are capable of certifying self respect marriages
u/s. 7A of the Hindu Marriage Act, 1955; and whether the Suyammariyathai
marriage-self-respect marriage can be solemnised in secrecy.
      Hindu Marriage Act, 1955 – s. 7A (as amended and applicable
in Tamil Nadu) – Special provision regarding suyamariyathai and
seerthiruththa marriages-self respect marriages – Advocates, if cabable
of certifying marriages u/s. 7A – Appellant married a girl in accordance
with s. 7A and the same was solemnized under the aegis of Advocates
and other social workers – Allegation that the girl was detained or
restrained against her will by her parents – Habeas corpus petition by
the appellant – Dismissed by the High Court – Correctness:
       Held: It is erroneus to hold that such marriage requires a public
declaration and that the marriage conducted in secrecy with few strangers
around, be it Suyammariyathai form, would not amount to solemnization, u/
ss. 7 and 7-A – To superimpose the condition of a public declaration, which is
absent in s. 7A, would narrow the wide import of the statue as also would be
violative of the rights u/Art. 21 – Furthermore, it cannot be said that advocates
are incapabe of certifying marriage, however, advocates being officers of
the Court, should not undertake or volunteer to solemnize marriages but can
act as witness – On facts, since the girl wishes to reside with the appellant
of own freewill, thus, issuance of directon to the respondents to ensure that
she joins the appellant – Constitution of India – Art. 21. [Para 6, 8]

                                      325
326          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      Judicial Notice – Role of advocates in solemnizing marriages:
      Held: Advocates or lawyers have many capacities-one being officers of
the Court, thus should not, while acting as counsel or advocates, undertake
or volunteer to solemnize marriages – It would result in advocates chambers
or offices turning out to be matrimonial establishment – However, in their
capacity as friends or relatives of the intending spouses, they can act as
witness. [Para 9]
       LIST OF CITATIONS AND OTHER REFERENCES
     S. Balakrishnan Pandiyan v. Inspector of Police 2014 (7) MadLJ
651 – disapproved.
      S. Nagalingam v. Shivgami (2001) 7 SCC 487; Lata Singh v. State of
UP, (2006) 5 SCC 475; Shafin Jahan v. Asokan KM, (2018) 16 SCC 368;
Laxmibai Chandaragi B. v. The State of Karnataka (2021) 3 SCC 360 –
referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2752 of 2023.
     From the Judgment and Order dated 05.05.2023 of the High Court of
Judicature at Madras at Madurai in HCPMD No.560 of 2023.
      Appearances:
      A Velan, Ms. Navpreet Kaur, Mritunjay Pathak, Advs. for the Appellant.
      Dr. Joseph Aristotle S., Adv. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

      S. RAVINDRA BHAT, J.
      1. Heard learned counsel for the parties, with their consent.
     2. The brief facts are that the appellant had preferred a habeas corpus
proceeding, alleging that he had married Mathithra in accordance with
   ILAVARASAN v. THE SUPERITENDENT OF POLICE &                            327
            ORS. [S. RAVINDRA BHAT, J.]

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.
      3. 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.”
      4. 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 confirms the report. In the
light of these developments, the Court is satisfied 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.
328           SUPREME COURT REPORTS                          [2023] 15 S.C.R.


     5. The above would have been dispositive of these proceedings.
However, this Court notices that the High Court in the impugned order-
followed a previous decision of a co-ordinate bench reported as “S.
Balakrishnan Pandiyan v Inspector of Police” 2014 (7) MadLJ 651.
      6. 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.”
      7. 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
   ILAVARASAN v. THE SUPERITENDENT OF POLICE &                           329
            ORS. [S. RAVINDRA BHAT, J.]

     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 finger of the other or tie a thali.
     Any of these ceremonies, namely, garlanding each other or putting a
     ring upon any finger of the other or tying a thali would be sufficient
     to complete a valid marriage. Sub-section (2)(a) of Section 7-A,
     specifically 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.”
      8. 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
330              SUPREME COURT REPORTS                                    [2023] 15 S.C.R.


a public declaration, which is absent in section 7A1, 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


1     7A. Special provision regarding suyamariyathai 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.
      (2) (a) Notwithstanding anything contained in section 7, but subject to the other
      provisions of this Act, all marriages to which this section applies solemnized after the
      commencement of the Hindu Marriage [Tamil Nadu] Amendment Act, 1967, shall be
      good and valid in law.
        (b) 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, but subject to sub-section (3), all marriages
        to which this section applies solemnized at any time before such commencement
        shall be deemed to have been, with effect on and from the date of the solemnization
        of each such marriage, respectively, good and valid in law.
      (3) Nothing contained in this section shall be deemed to-
        (a) render valid any marriage referred to in clause (b) of sub-section (2), if before
        the commencement of the Hindu Marriage [Tamil Nadu] Amendment) Act, 1967, -
            (i) such marriage has been dissolved under any custom or law; or
            (ii) the women who was a party to such marriage has, whether during or after the
            life of the other party thereto, lawfully married another; or
        (b) render invalid a marriage between any two Hindus solemnized at any time before
        such commencement, if such marriage was valid at that time; or
        (c) render valid a marriage between any two Hindus solemnized at any time before
        such commencement, if such marriage was invalid at that time on any ground
        other than that it was not solemnized in accordance with the customary rites and
        ceremonies of either party thereto:
      Provided that nothing contained in this sub-section shall render any person liable to
      any punishment whatsoever by reason of anything done or omitted to be done by him
      before such commencement.
      (4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2)
      born of such marriage shall be deemed to be their legitimate child:
      Provided that in a case falling under sub-clause (i) or sub-clause (ii) of clause (a)
      of sub-section (3), such child was begotten before the date of the dissolution of the
      marriage or, as the case may be, before the date of the second of the marriages referred
      to in the said sub-clause (ii).
   ILAVARASAN v. THE SUPERITENDENT OF POLICE &                                331
            ORS. [S. RAVINDRA BHAT, J.]

India. This Court has emphasized in more than one decision {Lata Singh
v. State of UP, (2006) 5 SCC 475, Shafin 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).
      9. 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 Officers 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 offices 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.
      10. The appeal is allowed in the above terms. Pending applications,
if any, are disposed of.


Headnotes prepared by:                                              Appeal allowed.
Nidhi Jain