Marriages performed in secrecy in the chambers of Advocates and Bar Association Rooms does not amount to solemnisation

 Marriages performed in secrecy in the chambers of Advocates and Bar Association Rooms, will not amount to solemnisation and only women who are victims of such marriage can question the same in matrimonial proceedings before the appropriate Court as a question of fact;

Madras High Court in its recent finding held that a marriage conducted in secrecy with few strangers around will not amount to solemnisation, as required under S. 7 and 7-A of the Hindu Marriage Act. The above finding came in the course of proceedings wherein question was whether an office of Advocate can be used as a place of marriage solemnisation and also whether Advocates can issue marriage certificate. It was held that the Certificate of Solemnisation issued by Advocates will not be per se proof of Solemnisation of Marriage in a matrimonial dispute. The present matter also involved application of Tamil Nadu Registration of Marriages Act, 2009 since the matter arose in the territorial jurisdiction of Tamil Nadu. 

The contention that there is no bar for the Advocates to present the papers for Registration and he drew parallels by citing the practice of Advocates presenting documents like sale deed etc. for registration before the Registration Officials was rejected on account of following reasons:

[a] Under the Tamil Nadu Document Writers Licence Rules, 1982, all non-testamentary documents should have to be prepared only by a Document Writer licensed in this behalf and it shall be duly attested by him with his full name and licence number. The Rules define ‘Document Writer’ as a person engaged in the profession of preparing documents. Preparation of document requires legal acumen and therefore, this falls within the province of the professional duties of an Advocate. The Registrar is required to go through the recitals in the document and also check the valuation etc. At that time, when there is a doubt in law, he will have to clarify it from the person who had drafted the document. Therefore, the presence of Advocate for Registration of documents becomes essential.
[b] An Advocate before registering a marriage, issues a Solemnisation Certificate in his capacity as Priest, as defined by S. 2(e) of the Act. Neither the Act nor the Rules insist upon the presence of the Priest during Registration. The scope of Registration is to check the identity of the parties and the witnesses and the enquiry is only factual. There is no question of law or legal question involved in such an enquiry for the Advocate to be present and give clarification to the Registrar of Marriages. The Registrar of Marriages is performing a public duty and the Act itself provides that he should give reasons for refusing to register a marriage and the order passed by him is an appealable one. We find there is no scope for the presence of the Lawyer-cum-Priest for effecting registration of a marriage. When the Registrar entertains any doubt with regard to the performance of the marriage, he may call upon the parties to produce further information to satisfy himself and only at that juncture, the necessity of the Priest to appear before the Registrar may arise and not otherwise. Therefore, we do not approve of Advocates appearing before the Registrar and presenting the Memorandum of Registration, for that would definitely lower the dignity of the Bar in the eyes of the public. The Preamble of the Bar Council Rules extracted above clearly states that, what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate.

It was accordingly held that [a] Marriages performed in secrecy in the chambers of Advocates and Bar Association Rooms, will not amount to solemnisation and only women who are victims of such marriage can question the same in matrimonial proceedings before the appropriate Court as a question of fact; [b] No registration of marriage can be done under the Tamil Nadu Registration of Marriages Act, 2009 without the physical presence of the parties to the marriage before the Registrar, except under special circumstances after recording the reasons; [c] 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 shall take appropriate action in accordance with law; [d] On complaints lodged by the Registering Authorities seeking protection, the police are directed to afford sufficient protection immediately. 

[S. Balakrishnan Pandiyan and Anr. vs. Superintendent of Police and Anr.]
(Madras HC, 17.10.2014)