Full Judgment Text
REPORTABLE
2023INSC813
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2023
(ARISING OUT OF SLP (CRL.) NO(S). 6534 OF 2023)
ILAVARASAN …APPELLANT(S)
VERSUS
THE SUPERINTENDENT OF POLICE & ORS. …RESPONDENT(S)
J U D G M E N T
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 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
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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.
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
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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 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
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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
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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, Shafin Jahan v. Asokan KM, (2018) 16 SCC 368, and
1 7A. Special provision regarding suyamariyathai and seerthiruththa marriages. - (1) This section shall ap-
ply 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 mar-
riages 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 Mar-
riage ([Tamil Nadu] Amendment) Act, 1967, or in any other law in force immediately before such com-
mencement 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 commence-
ment, 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 accord-
ance 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).
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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.
.…...………………………J.
[S. RAVINDRA BHAT]
..…....……….……………J.
[ARAVIND KUMAR]
NEW DELHI;
AUGUST 28, 2023
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ITEM NO.12 COURT NO.5 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 6534/2023
(Arising out of impugned final judgment and order dated 05-05-2023
in HCPMD No. 560/2023 passed by the High Court Of Judicature At
Madras At Madurai)
ILAVARASAN Petitioner(s)
VERSUS
THE SUPERINTENDENT OF POLICE & ORS. Respondent(s)
(FOR ADMISSION and I.R. and IA No.103620/2023-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.103623/2023-EXEMPTION FROM
FILING O.T. )
Date : 28-08-2023 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE ARAVIND KUMAR
For Petitioner(s) Mr. A Velan, AOR
Ms. Navpreet Kaur, Adv.
Mr. Mritunjay Pathak, Adv.
For Respondent(s) Dr. Joseph Aristotle S., AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed reportable
judgment.
Pending applications, if any, are disposed of.
(HARSHITA UPPAL) (BEENA JOLLY)
SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)
(signed reportable judgment is place on the file)
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