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

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

The Judgment of the Court was delivered by Sangitrao S. Patil, J.:— Rule, returnable forthwith. With the consent of the learned Counsel for the parties, heard finally.

2. The petitioner has sought quashment of the Circular issued by respondent no. 1 – Registrar of Marriages, appointed under the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998 (“the Act”, for short), to the extent it mandates presence of Priest/Purohit, who performs marriage, to remain present before the office of the Registrar of Marriages at the time of registration of marriage for signing the memorandum of marriage in his presence only, as a witness to the marriage.

3. The petitioner is working as a Purohit. He is performing all religious activities in Kalaram Temple at Nashik, including performance of necessary rites and ceremonies for solmanization of marriages.

4. The learned Counsel for the petitioner submits that as per the provisions of Clause (b), sub-section (1) of Section 6 of the Act, the parties and three witnesses to the marriage shall appear in person before the Registrar of Marriages for signing the memorandum of marriage. There is no provision in the Act mandating presence of Priest/Purohit who performs necessary rites/ceremonies for solmanization of marriage. He further submits that the petitioner being Purohit has to perform necessary rites and ceremonies in various marriages that take place in Kalaram temple at Nashik as well as in different temples or places. It would be highly difficult for him to attend the office of the Registrar of Marriages to sign the memorandum of marriage, as witness in connection with each and every marriage performed with his assistance. It would create a great hardship for him to attend the offices of Registrars of various Districts where the parties to marriages wish to register their marriages. He, further, submits that if the petitioner is made to attend the offices of the Registrars of Marriages, he would be required to spend a number of days in visiting the offices of Registrars of Marriages and in that event, he would not be in a position to attend his religious functions in the temples or other place, through which he earns for his livelihood. He, therefore, submits that the condition in the Circular issued by respondent no. 1 making it compulsory for the Priest/Purohit to attend the office of Registrar of Marriages as a witness for signing the memorandum of marriage, may be quashed and set aside.

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5. The learned Counsel appearing for respondent no. 1 submits that in order to rule out the possibility of registration of fake marriages, respondent no. 1 thought it fit to insist upon presence of the Priest/Purohit, who assisted in performance of the marriage. He, therefore, supports the above-referred condition in the Circular.

6. As per Section 6 of the Act, it is the responsibility of the husband to present, within a period of 90 days from the date of solmanization of marriage, a memorandum in the prescribed form, before the Registrar of Marriages within whose jurisdiction, the husband ordinarily resides or where either of the parties resides. As per Clause (b), sub-section (1) of Section 6, the parties and three witnesses to the marriage shall appear in person before the Registrar of Marriages and sign the memorandum. There is no requirement under any of the provisions of the Act requiring presence of Priest/Purohit, who assisted the parties in performing the marriage, before the Registrar of Marriages, as a witness for signing the memorandum of marriage.

7. Section 7 of the Hindu Marriage Act, 1955 reads as under:—

7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemanized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptpadi (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.

8. The above-mentioned provisions do not show that presence of the Priest/Purohit is essential for performing the rites/ceremonies for solmanization of marriages. It is, thus, clear that it is the matter of faith or volition of the parties to the marriage, to take assistance of Priest/Purohit for solmanization of their marriage.

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9. It is a common knowledge that there are certain schools of thoughts and communities, which do not take assistance of any Priest/Purohit for performance of marriages. For example: the followers of ‘Satyashodhak Samaj’ do not engage any Priest/Purohit for performance of marriage. If that be so, it would be difficult for the followers of such schools of thought, to ensure presence of Priest/Purohit before the Registrar of Marriages for getting their marriage registered.

10. 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.

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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.
(iii) Rule is made absolute accordingly.
(iv) No costs.

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