2023INSC813 REPORTABLE

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

superimpose the condition of a public declaration, which is absent in section 7A

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, 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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