The Madras High Court on January 22, 2019, in the case of A. Kannan v. The Principal Secretary to Government of Tamil Nadu & Others has directed the Inspector General of Registration to issue a circular making the physical presence of the parties to the marriage mandatory for the registration of their marriage.
A Bench comprising of Justice K.K. Sasidharan and Justice P.D. Audikesavalu issued the said direction on observing that 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.
The Bench passed the order on a public interest litigation filed by a practising advocate A. Kannan complaining that Registrars of marriages are registering marriages without verifying the solemnization of such marriage in accordance with the personal laws of the parties as Section 5 of The 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.
In its petition, 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 making the presence of the parties to the marriages compulsory.
Moreover, the petitioner also sought a direction to the Bar Council of Tamil Nadu & Puducherry to take action against Advocates who have given certificates of solemnization of marriages and registered the marriages in violation to the provisions of the Act.
The Bench observed that, under Section 7 of the Tamil Nadu Registration of Marriages Act, 2009, an obligation has been cast on the Registrar of marriages, before registering a marriage, to be satisfied that the marriage between the parties has been performed in accordance with the personal laws of the parties or any custom or usage or tradition and that the identity of the parties has been established.
The Bench also referred to a decision passed by the High Court in S. Balakrishnan Pandiyan v. Superintendent of Police wherein the High Court, holding that marriage performed in secrecy at the Advocate's Chambers would not amount to solemnization has ruled that no marriage can be done without the physical presence of the parties to the marriage before the Registrar of marriages, except under special circumstances after recording the reasons.
In light of the observations made, the Bench issued the following directions:
"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."
In regard to the claim made for directing the amendment of the Rules, the Bench said that “Section 7 of the Act contains adequate provisions regarding the lacunae complained by the Petitioner and as such, there is no requirement for amending the Rules.”
Further, coming to the last relief that appropriate action should be taken by the Bar Council of Tamil Nadu & 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 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.