Bom HC: Circular mandating presence of priest during registration of marriage as witness is quashed

In the present case, the petitioner ordinarily performs the rites and ceremonies for solmanization of marriages in Kalaram temple at Nashik and the nearby places. According to him, he assists in performing a number of marriages. If that be so, it would certainly be difficult for him to quit his place of working for attending the Offices of Registrars of Marriages at various places away from Nashik for signing as a witness to the memorandums of marriages. He would be required to spend a lot of time and money for visiting those places. His absence from his place of working would certainly hamper his daily work, which would adversely affect on his source of livelihood. All these difficulties should have been anticipated by respondent no. 1 while incorporating the condition in the Circular making it compulsory for the Priest/Purohit to attend his office as a witness to the marriage for signing the memorandum of marriage. There is absolutely no rational behind imposing the said condition. The said condition is not in consonance with the provisions of Clause (b) of sub-section (1) of Section 6 of the Act. It is ex-faciearbitrary. Consequently, it is liable to be quashed and set aside.

11. In the result, we pass the following order:—

(i) The Writ Petition is allowed.

(ii) The condition imposed by respondent no. 1 in the Circular requiring presence of the Priest/Purohit as a witness to the marriage for signing of memorandum of marriage in the presence of respondent no. 1, is quashed and set aside.

In the High Court of Bombay at Aurangabad

(Before S.C. Dharmadhikari and Sangitrao S. Patil, JJ.)

Umesh @ Girish Arvind Pujari,v.

 Registering Authority, Jalgaon City Municipal Corporation, Jalgaon

Writ Petition No. 1010 of 2017

Decided on August 1, 2017,

Citation:2017 SCC OnLine Bom 7240 : 

(2017) 5 Bom CR 331

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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
 MR.SANJAY KISHAN KAUL, CHIEF JUSTICE
AND
 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

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