Recently, several media reports have been doing the rounds stating that the Supreme Court has allowed advocates to solemnize marriages in their chambers under the Hindu Marriage Act 1955, overruling a Madras High Court judgment that held such marriages to be invalid.
However, contrary to what several media reports claim, what the Apex Court actually held in its recent ruling was that lawyers should not, while acting as counsel or advocates or their capacity as advocates, undertake or volunteer to solemnize marriages. The Top Court however, clarified that in their private capacity as friends or relatives, the role of an advocate as a witness cannot be ruled out.
The Supreme Court in fact, stated that the concern of the Madras High Court was ‘not entirely unfounded’ and cautioned against advocates’ chambers turning into matrimonial establishments:
“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” the Apex Court said.
While a bench of Justice S Ravindra Bhat and Justice Aravind Kumar overruled the 2014 Madras High Court judgment in S. Balakrishnan Pandiyan v Inspector of Police which held that marriages performed by advocates as per Hindu Marriage Act 1955 (as applicable to the State of Tamil Nadu) are not valid and that Suyammariyathai marriage (‘self-respect marriage’) cannot be solemnised in secrecy, the Court clarified that advocates, being officers of the court, should abstain from undertaking or volunteering to solemnize ‘self-respect marriages’ in their professional capacity. However, the Supreme Court did not rule out that possibility of advocates standing as witnesses for marriages in their personal capacities as friends or relatives.
While acknowledging the multifaceted roles lawyers play in society, the Supreme Court highlighted the importance of maintaining a clear demarcation between an advocate’s professional responsibilities and their private interests. Justice S. Ravindra Bhat orally remarked, “Just like we’ve notary and other professional services, it shouldn’t be that now we have marriage counsels as such”.
The case before the Supreme Court was based on the self-marriage system under 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.
The appeal before the Supreme Court arose out of judgment of the Madras High Court which dismissed a habeas corpus petition filed by a man seeking the release of his partner from detention by her family (Ilavarsan v. The Superintendent of Police). The High Court, following the judgment in Balakrishnan Pandiyan, refused to accept the self-respect marriage certificate issued by an advocate and dismissed the habeas corpus petition. The High Court also directed the Bar Council to initiate disciplinary action against advocates issuing such certificates.
Considering the special leave petition, the Supreme Court disagreed with the view expressed in Balakrishnan Pandiyan which was followed in Ilavarasan. 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. The Supreme Court observed that the couples intending to marry may refrain from making a public declaration due to various reasons, such as familial opposition or fear for their safety, in such cases, enforcing a public declaration could put lives at risk and potentially result in forced separation.
The Court further made remarks in its judgment regarding the risks that couples who marry against the wishes of their families face.
“It’s not hard to visualize other pressures brought to two individuals who are otherwise adults and possess free will. This view(in Pandiyan) is not only narrowing an otherwise wide import of statute but is also violative of the right under Article 21 of the Constitution.”
The Court also referred to various Supreme Court precedents that recognized the right to choose a life partner as a fundamental right under Article 21. Declaring the view expressed in Balakrishnan Pandiyan to be erroneous, the Court overruled it.
Case title: Ilvarasan v. Superintendent of Police
