Advocates Should Not Solemnise 'Self-Respect Marriages' In Professional Capacity But Can Act As Witnesses In Private Capacity : Supreme Court
The Supreme Court today ruled that advocates, being officers of the court, should abstain from undertaking or volunteering to solemnize 'self-respect marriages' as per Hindu Marriage Act 1955 (as applicable to State of Tamil Nadu) in their professional capacity. However, they may stand as witnesses for marriages in their personal capacities as friends or relatives.A bench comprising Justices...
The Supreme Court today ruled that advocates, being officers of the court, should abstain from undertaking or volunteering to solemnize 'self-respect marriages' as per Hindu Marriage Act 1955 (as applicable to State of Tamil Nadu) in their professional capacity. However, they may stand as witnesses for marriages in their personal capacities as friends or relatives.
A bench comprising Justices S Ravindra Bhat and Aravind Kumar made these significant observations while overruling the 2014 Madras High Court judgment in S. Balakrishnan Pandiyan v Inspector of Police which held that marriages performed by the advocates are not valid and that Suyammariyathai marriage (self-respect marriage) cannot be solemnised in secrecy.
"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 case before the Supreme Court was based on the self-marriage system as per 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 Balakrishnan Pandiyan judgment, 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, a bench comprising Justices S Ravindra Bhat and Aravind Kumar disagreed with the view expressed in Balakrishnan Pandiyan which was followed in Ilavarasan.
For context, Section 7A of the Hindu Marriage Act (as applicable in Tamil Nadu) is extracted as follows :
“Section 7-A: Special Provision regarding suyammariyathai 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."
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 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.
The Court further said that the observations made by the High Court concerning the role of Advocates "may not have been warranted". At the same time, it said that some concerns are not entirely unfounded.
"Advocates have many capacities. They are officers of the court. While acting as counsel/advocate, they should not undertake or volunteer to solemnize marriages. However, in their private capacity as friends as relatives, their roles as witnesses cannot be ruled out".
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”.
Case title: Ilvarasan v. Superintendent of Police
Citation : 2023 LiveLaw (SC) 735; 2023INSC813