Sunday, 14 February 2016

When Marriage performed without priest is valid?


The Hindu religion by itself is pluralism in character and thus, various forms of marriages have traditionally existed depending on the area and the custom prevalent therein.   Section 7-A provides for particular kind of marriages i.e. suyamariyathai marriages among two Hindus.   It has also stood the test of time now for half a century. In such matters of personal law, the option given to the parties  cannot be said to be one which is hit by any provisions of the Constitution of India.  
In S.Nagalingam v. Sivagami, reported in AIR 2001 SC 3576, the question which falls for consideration was whether the second marriage entered into by the appellant therein with the second accused was a valid marriage under Hindu Law, so as to constitute an offence under Section 494 IPC.  A contention was raised stating that Saptapadi is an important ritual which forms part of the marriage ceremony, having not been performed and therefore, there was no valid marriage in accordance with the Hindu rites.    While deciding the matter, the Hon'ble Supreme Court took into consideration Section 7-A of the Hindu Marriage Act, 1955, as inserted by the State of Tamil Nadu and pointed out that 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.  The 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 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.  Further, the Hon'ble Supreme Court pointed out that 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 (Madras Amendment) Act, 1967 shall be good and valid in law.  Further, Sub-section (2)(b) 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 (Madras 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. 
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2015
CORAM
The Hon'ble MR.SANJAY KISHAN KAUL, CHIEF JUSTICE
AND
The Hon'ble MR.JUSTICE T.S.SIVAGNANAM

W.P.No.34788 of 2015
and
M.P.No.1 of 2015

A.Asuvathaman
     -vs-

Union of India,
 Citation;AIR 2016 Madras 17

The petitioner, an advocate by profession, a married one, seeks to assail the provision of Section 7-A of the Hindu Marriage Act, 1955 as amended by the Hindu Marriage (Madras Amendment) Act, 1967.

2. The plea of the petitioner is that it is after a great debate and discussion, the Hindu Marriage Act, 1955 was enacted, setting out the essentials of a Hindu marriage.   In that context, the petitioner has referred to the provision of Section 7, which reads as under:-
7.Ceremonies for a Hindu  marriage.- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

3. It is accepted by the petitioner that in terms of the provision of the aforesaid Section, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies as per Sub-section (1) of Section 7.  Sub-section (2) of Section 7 only stipulates where saptapadi is included in such rights and ceremonies, how the process of saptapadi is completed.

4. The petitioner also refers to Section 3, definition clause, where Sub-section (a) defines custom and usage as under:-
3(a) the expression custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.

5. It is the say of the petitioner by reference to the observations of Lord Denning, in R v. Secretary of State for Foreign and Common Wealth Affairs, (1982) 2 All E.R. 118 that customary laws are not written down, but they are handed down by tradition from one generation to another and they are well established and have the force of law within the community.

6. The grievance of the petitioner is that introduction by the State Amendment of Section 7-A clearly seeks to bring the philosophy of political movement to provide for a marriage which is not in conformity with the customary rites and ceremonies and that too without much debate.   It is his plea that this provision is, thus, ultra vires the provision of Section 7 read with Section 3(a) and contrary to the very tenets of Hinduism.   The petitioner further states that this treats equals as unequals under Article 14 of the Constitution of India.  It is stated that this is arbitrary and thus, it violates the said provision of law.

7. On hearing the petitioner appearing in person, we are unimpressed by the arguments sought to be advanced.  Firstly, it must be appreciated that this is not an administrative decision to be tested in that manner, on the touch stone of arbitrariness.  It is a legislative exercise and the tests for the same  are different.  It is not a case of legislative incompetence.  We also fail to understand how it could be said that there is conflict or violation of Section 7 of the Act on account of insertion of Section 7-A by way of State amendment.   Mere utterance of Article 14 of the Constitution of India is not sufficient, as there is no case of discrimination since option is available to any of the parties who want to enter into a matrimony to proceed in accordance with the original Section 7 or as per Section 7-A of the Hindu Marriage Act, 1955.

8. The settled legal position is that there is always a presumption in favour of the constitutionality of an enactment and it is the duty of the Court to uphold the constitutional validity of the statute.  In  Ram Krishna Dalmia v. S.R.Tendolkar, AIR 1958 SC 538, the Hon'ble Supreme Court pointed out that the burden is upon him, who challenges the constitutional validity to show that there has been a clear transgression of the constitutional principles and it is the duty of the Court to sustain that there is a presumption of constitutionality and in doing so, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts, which can be conceived existing at the time of legislation and while testing the constitutional validity, the submissions have to be considered in the back drop of the aforesaid caveat.  

9. The Hon'ble Supreme Court in Subramnian Swamy v. Director, Central Bureau of Investigation and another, reported in (2014) 8 SCC 682, after taking note of several of its earlier decisions on the ambit and scope of Article 14 of the Constitution of India, pointed out that it is well established that while Article 14 of the Constitution of India forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.  The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question.  

10. In the case before us, except for referring to Article 14 of the Constitution of India, nothing has been placed to show that the Madras Amendment Act, 1967 viz., Section 7-A, which was inserted about 50 year ago, does in any manner amounts to class legislation.

11. In Ram Krishna Dalmia's case (supra), the Constitutional Bench pointed out that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.  The legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.  In the absence of any material to dislodge the presumption as to the validity of the statute, the question of striking it down at the instance of the petitioner by way of this Public Interest Litigation does not arise.

12. The Hindu religion by itself is pluralism in character and thus, various forms of marriages have traditionally existed depending on the area and the custom prevalent therein.   Section 7-A provides for particular kind of marriages i.e. suyamariyathai marriages among two Hindus.   It has also stood the test of time now for half a century.

13. In such matters of personal law, the option given to the parties  cannot be said to be one which is hit by any provisions of the Constitution of India.  

14. In S.Nagalingam v. Sivagami, reported in AIR 2001 SC 3576, the question which falls for consideration was whether the second marriage entered into by the appellant therein with the second accused was a valid marriage under Hindu Law, so as to constitute an offence under Section 494 IPC.  A contention was raised stating that Saptapadi is an important ritual which forms part of the marriage ceremony, having not been performed and therefore, there was no valid marriage in accordance with the Hindu rites.    While deciding the matter, the Hon'ble Supreme Court took into consideration Section 7-A of the Hindu Marriage Act, 1955, as inserted by the State of Tamil Nadu and pointed out that 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.  The 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 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.  Further, the Hon'ble Supreme Court pointed out that 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 (Madras Amendment) Act, 1967 shall be good and valid in law.  Further, Sub-section (2)(b) 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 (Madras 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. 

15. The only purpose served by this writ petition is raising a divisive issue as if we have any shortage of the same!  We have asked the petitioner whether he was facing any difficulty personally, but he states that he was happily married.  If he had a problem, possibly, solution could have been found.

16. We are not inclined to entertain this petition to challenge the provision of Section 7-A of the Hindu Marriage Act, 1955.

17. The writ petition is dismissed.  No costs.  Consequently, M.P.No.1 of 2015 is closed.

(S.K.K., CJ.)   (T.S.S., J.)
30.10.2015        

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