In the High Court of Madras (MADURAI BENCH)
W.P. (MD) No. 1567 of 2016 and W.M.P. (MD) No. 1328 of 2016
The Principal Secretary to Government of Tamil Nadu and Ors
Date of Judgement
22nd January 2019
Justice K.K. Sasidharan and Justice P.D. Audikesavalu
Brief facts of the case:
A petition was filed by A Kannan who is a practicing lawyer. In his Public interest Litigation (PIL) he filed a complaint against the registrars of marriages who without verifying the solemnization of marriage in accordance with the personal laws of the parties are registering the marriages. A Kannan has appeared part-in-person, Mr. A.K. Baskarapandian, Learned Additional Government Pleader appearing for the First to Fourth Respondents, Mr. Niranjan S. Kumar for the Fifth Respondent.
Following issues are raised before the Hon’ble HC:
1. Whether the presence of parties at the time of registration is mandatory?
2. Whether the registrar of marriages should be punished if marriage registration is done without considering the fact that valid marriage has been solemnized under various personal laws?
Arguments in favour of the Petitioner:
The Petitioner sought for the following reliefs:
1. The advocate has sought from the court to issue appropriate directions to the Registrars of marriages in the State of Tamil Nadu, not to register the marriages that are solemnized in derogation to the personal laws of the parties to the marriages and to amend the Rules by making the presence of the parties to the marriages compulsory.
2. To amend the Rules according to the changing scenario by making the presence of the parties to the marriage’s compulsory before the Registrars of marriages as sought in the representation dated 23.12.2015; and
3. To take appropriate action against the Advocates who have given certificate for solemnization of marriages and registering the marriages in violation of the Act.
Arguments in favour of the Respondent’s:
It has been pointed out that the contentions made by the petitioners is without taking into the reference of section 7 of The Tamil Nadu Registration of Marriages Act, 2009 which states that before registering the marriage, the registrar of marriage should be satisfied with the solemnization of the marriage which has been done in accordance with the personal laws of the parties or custom or usage or tradition. The identity of the parties should be established beyond reasonable doubt and registrar may call for any documents deemed necessary for establishing the identity of the parties. The Bench also referred to a decision in the case, S. Balakrishnan Pandiyan v. Superintendent of Police wherein the High Court said that if the marriage commences under the secrecy at advocate’s chambers, it would not amount to solemnization. It has been said that physical presence of the parties is necessary for solemnization of the marriage except under the special circumstances after recording the same. Moreover, in the case, E. Natarajan vs. State (Order dated 14.12.2015 in H.C.P. (MD) No. 1722 of 2015), division bench highlighted the manner in which the valid marriages should be deemed as solemnized under various personal laws and also marriages under Special Marriage Act,1954.
Decision held by the Hon’ble court:
Writ petition is disposed of by making the observations stated under:
It is observed by the Hon’ble bench: “ We are of the considered view that it would be appropriate to direct the Third Respondent, viz., the Inspector General of Registration, to forthwith issue a circular to all the Registrars of marriages in the State of Tamil Nadu highlighting that in terms of Section 7 of the Act, as interpreted in the decisions of this Court mentioned supra, the physical presence of the parties to the marriage is necessary for the registration of their marriage and it shall be incumbent upon the parties applying for the registration of marriage to establish that the marriage between them has been performed in accordance with their personal laws or custom or usage or tradition. It shall also be indicated that if it is represented that any of the parties to the marriage could not be present due to any extenuating circumstances, the concerned Registrar of marriages would have to record reasons in writing in the event of accepting any such claim for exemption. It shall also be sternly warned that if any Registrar of marriages registers a marriage under the Act without complying with the said mandatory requirements, he shall be liable for disciplinary action as per rules.”
The court also made it clear that the claim made by the petitioner for amending “section 7 of the Tamil Nadu Registration of marriages Act ,2009” is not required as the Act contains adequate provisions regarding the lacunae complained by the Petitioner. Further, the last relief claimed by the petitioners is that appropriate actions should be taken by Fifth Respondent, viz., Bar Council of Tamil Nadu and Puducherry, against Advocates, who have given certificates for solemnization of marriages and registered the marriages in violation of the Act, the Bench reiterated the direction it issued in S. Balakrishnan Pandiyan judgment that, if a complaint is made by a party to the marriage to the Bar Council of Tamil Nadu and Puducherry against a Priest-cum-Advocate, the Bar Council of Tamil Nadu and Puducherry shall take appropriate action in accordance with law.
SECTION 5 OF TAMIL NADU REGISTRATION OF MARRIAGES ACT, 2009– does not make it mandatory for the presence of the parties to the marriage at the time of registration of their marriage.
SECTION 7 OF TAMIL NADU REGISTRATION OF MARRIAGES ACT , 2009 — states that before registering the marriage the registrar of marriage should be satisfied with the solemnization of the marriage which has been done in accordance with the personal laws of the parties or custom or usage or tradition.
It is clear from the interpretation of section 5 and section 7 of the Tamil Nadu Registration of Marriages Act, 2009 that presence of parties for registration of marriage is necessary and it is required for the registrar to consider the fact that the valid marriage has been solemnized between the applying parties according to their personal law or the procedure established by law. Bench also referred to the previous decision of S. Balakrishnan Pandiyan v. Superintendent of Police.
A petition was filed by the lawyer (A Kannan), who complained that registrars of marriages are registering marriages without considering the fact that marriage is actually solemnized according to personal laws or customs or usage etc. He also demanded to make the personal presence of the parties for registration of marriage as compulsory. It is stated by the court that the petitioners made contentions without taking into notice the section 7 of the said Act and held that physical presence for the parties is necessary and registrar should be satisfied with the fact that the marriage is commenced between the parties before registering the marriage.
Edited by Sree Ramya
Approved & Published – Sakshi Raje