The Supreme Court, on Monday, August 28, ruled that advocates in Tamil Nadu were allowed to solemnise 'self-respect marriages' under the Hindu Marriage Act, though only in their personal capacity as a friend or relative of the couple. In doing so, it overruled a 2014 verdict of the Madras High Court, which had held that marriages performed by advocates were not valid and also that self-respect marriages could not be solemnised in secrecy but only in public.
On Monday, the Supreme Court noted that some couples might not want to marry publicly for various reasons, including opposition from their families and out of fear for their safety, noting that enforcing a public declaration in such cases could put the couple at risk or lead to forced separation by parents.
A bench of Justices Ravindra Bhatt and Aravind Kumar said that there was no blanket ban on advocates from solemnising the Suyammariyathai form of marriage, or self-respect marriage, under Section 7A of the Hindu Marriage (Tamil Nadu Amendment) Act.
Section 7A, which pertains to a special provision for self-respect marriages, says that such marriages are to be solemnised in the presence of relatives, friends or other persons. Self-respect marriage (called suyammariyathai thirumanam in Tamil) is a form of marriage between two Hindus for which the presence of a priest is not necessary, unlike other unions under the Hindu Marriage Act.
The court held that lawyers, in their personal capacity of a friend, relative or social activist, could perform such marriages, but must not do so while acting in their professional capacity as officers of the court.
The Supreme Court was handing down its verdict on a special leave petition filed through advocate A Velan, challenging the Madras High Court’s 2014 decision in S Balakrishnan Pandiyan v Inspector of Police case, ordering initiation of disciplinary action against advocates under whose aegis the self-respect marriages had been solemnised.
Also the impugned High Court order had held that a marriage conducted in secrecy with few strangers around would not amount to solemnisation, as required under Sections 7 and 7A of the Hindu Marriage Act as applicable in Tamil Nadu.
In May this year, Ilavarasan filed a habeas corpus petition the the Madras HC alleging that his partner was illegally detained by her parents and produced their self-respect marriage certificate. The Madras HC refused to accept the certificate, which was issued by an advocate, as the marriage itself had been declared illegal in 2014.
Dismissing the habeas corpus petition, the HC added for good measure that the bar council should initiate disciplinary action against advocates for issuing "fake marriage certificates”. Aggrieved, Ilavarasan approached the apex court, challenging this order.
Ruling that the Madras HC order was “erroneous”, the Supreme Court observed that couples intending to marry might refrain from making a public declaration due to various reasons, such as familial opposition or fear for their safety. The assumption that each marriage requires a public solemnisation or declaration “is rather simplistic, because often due to parental pressure, couples intending to enter into matrimony may not enter into it for the reason of such opposition, hold or give such public declaration, as doing so would imperil their lives and could very likely result to threat of bodily integrity, or forcible or coerced separation,” the court said.
The court also observed that while advocates, as officers of court, or as counsel/advocate, should not solemnise marriages, they can do so in their private capacity. "Advocates have many capacities. They are officers of the court. While acting as counsel/advocate, they should not undertake or volunteer to solemnise marriages. However, in their private capacity as friends as relatives, their roles as witnesses cannot be ruled out."
The court had earlier asked the woman named in Ilavarasan’s petition to give a statement on her stand, and she stated that she wanted to live with the petitioner, her partner.
(With IANS inputs)