Revision as of 06:20, 19 June 2013

Premarital sex

Premarital sexual relations imply marriage

Couples who have premarital sex to be considered ‘married,’ says HC.

The Hindu June 17, 2013

If any unmarried couple of the right legal age “indulge in sexual gratification,” this will be considered a valid marriage and they could be termed “husband and wife,” the Madras High Court has ruled in a judgment that gives a new twist to the concept of premarital sex.

The court said that if a bachelor has completed 21 years of age and an unmarried woman 18 years, they have acquired the freedom of choice guaranteed by the Constitution. “Consequently, if any couple choose to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow, except on certain exceptional considerations.”

The court said marriage formalities as per various religious customs such as the tying of a mangalsutra, the exchange of garlands and rings or the registering of a marriage were only to comply with religious customs for the satisfaction of society.

The court further said if necessary either party to a relationship could approach a Family Court for a declaration of marital status by supplying documentary proof for a sexual relationship. Once such a declaration was obtained, a woman could establish herself as the man’s wife in government records. “Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established."

The court also said if after having a sexual relationship, the couple decided to separate due to difference of opinion, the ‘husband’ could not marry without getting a decree of divorce from the ‘wife’.

Justice C.S. Karnan passed the order on Monday while modifying an April 2006 judgment of a Coimbatore family court in a maintenance case involving a couple. The lower court had ordered the man to pay monthly maintenance of Rs. 500 to the couple’s two children and Rs. 1000 as litigation expenses. The lower court observed that the woman’s wedding with the man had not been proved by documentary evidence. Hence, she was not entitled to maintenance. In her appeal to the High Court, the woman’s counsel contended that she was legally married and had two children in wedlock. Justice Karnan said he was of the view that a valid marriage did not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised. In the present case, the woman and her husband had no encumbrance or other disqualification for solemnising their wedding as per their customs. For solemnising a wedding, legal aspects should be placed on a higher scale than the customary aspects. In this case, the man had signed in the ‘live birth report’ of his second child and given his consent for a Caesarean section for its birth. As such, he had officially admitted that she was his wife.

“Without legal encumbrance or third party interference or without affecting third party rights, both the petitioner and the respondent lived together as spouses and begot two children.” Therefore, the question of an illegitimate relationship did not arise. Wedding solemnisation was only a customary right, but not a mandatory one. Hence, the judge said, he was treating the couple as spouses in normal life.

“It is not disputed that the petitioner has been a spinster before she gave birth and that the respondent was a bachelor before developing sexual relationship with the petitioner. Both of them led their marital life under the same shelter and begot two children. Therefore, the petitioner’s rank has been elevated as the `wife’ of the respondent and likewise, the respondent’s rank has been elevated as the `husband’ of the petitioner. Therefore, the children born to them are legitimate children and the petitioner is the legitimate wife of the respondent.”

The judge directed the woman’s husband to pay her a monthly maintenance of Rs.500 from the date of petition, i.e. from September 2000. The arrears of maintenance up to May this year should be paid within a period of three months.

Lawyers’ interpretations of the order

HC ruling on live-in divides experts

ASubramani | TNN 2013/06/19

The Times of India

Chennai: The Madras high court did not issue a blank cheque when it said on Monday that marriage meant ‘consummation of sexual interaction’ between a man and woman of marriageable age, with or without the rituals.

Some jurists and lawyers, chiding knee-jerk interpretations of the order, especially on social-networking portals, caution that the HC had not attempted to set down terms for a man-woman relationship outside marriage. Far from that. All it said, in fact, was that after a prolonged relationship as partners, a man or woman cannot relieve himself/herself from its consequences and liabilities, on the ground that it had not been registered or solemnised.

Advocate and matrimonial case specialist T K R Sudha, who is also treasurer of the Madras high court advocates association (MHAA), said the order was almost in tune with umpteen orders of the Supreme Court and other high courts on the issue of live-in relationships. “Though matrimonial laws have not been amended adequately to accommodate and address the complexities of live-in affairs, there are apex court rulings which are laws of the land till a specific law is enacted. The soul of the judgment is in line with apex court rulings, only words are different,” she said.

However, senior advocate and former HC judge, K Chandru said, “Matrimonial issues must be addressed on case-bycase, facts-by-facts and person-by-person basis,” although the presumption of marriage is possible in cases of domestic violence cases, which have a specific provision dealing with household and live-in relationships.

But in general, he warns against the tendency to make sweeping statements in family matters.

Chandru feels the order is likely to be misunderstood by subordinate courts, which might force people into relationships merely because they have had sexual relations.

“Though perfectly all right when read in the context of the case in hand, certain phrases and words in the judgment do disturb me. Terms such as ‘sexual consummation’, ‘sexual gratification’ and ‘sexual interaction’ are not politically correct in this age.

While higher judicial forums have adopted a holistic view of the live-in relationship and tried to maintain a fine balance between a usual marriage and an unusual marriage, this verdict tries to draw a black-and-white portrait,” said a senior judicial officer.

Badar Sayeed, former additional advocate-general of Tamil Nadu, felt the court had attached too much value to the sexual aspect of a wedding.

While agreeing with Justice C S Karnan’s ruling that he had to presume that the parties to the case — Aysha and Ozir Hassan — were wife and husband because there was evidence to show they lived together for about five years and had two children during the period, she said the judge’s views on primacy of sexual interaction between the couple as obiter dicta have no force of law.

As for the court’s suggestion that either party may approach the family court for declaration of their marital rights, activist and advocate Geetha Ramaseshan said this would open a floodgate of litigation in the family court.