Premarital Sex and Marriage : An analysis by Madras High Court

The Madras High Court has in a judgement said 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 Honourable Madras High Court's on 17th June 2013, Passed a judgment which turned into a hot topic of debate in all over the country. The Judgment says, that "the premarital sex as a method of solemnizing a marriage." News Channels broadcasted their own particulars appealing features and along with these lines the news was deciphered by individuals also.

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The petitioner A, a Hindu, and respondent OH, a Muslim, lived under one roof, had sexual relations, and had two children between 1994 and 1999. There was documentary proof that OH was the father of at least the second of such children. There was also proof that OH had applied for a “family card” for himself, A and the two children. However, A’s marriage to OH was not registered in the Islamic marriage register - the Nikah book. In 1999 OH deserted A and her two minor children.

In 2000 she filed for maintenance of Rs 5,000 per month from him for herself and the two children, claiming that he earned Rs 25,000 per month from his business. OH denied that A was his wife, said she was a “dubious” woman who was his co-worker, and that there was no documentary proof of religious solemnisation of marriage between them.

The family court judge observed that though the two children belonged to the respondent and were each entitled to a maintenance of Rs 500 per month from OH, and while A was entitled to Rs 1,000 per month from OH towards litigation expenses, A was not the wife of OH in the absence of documentary proof supporting their marriage.

However, when A filed a revision petition against this order of the family court, Justice CS Karnan at the Madras high court held that customary rites are not necessary to solemnise a valid marriage, and as long as there is no legal bar to A and OH’s marriage, while they have also had children together, A’s status has been elevated to ‘wife’ of OH.

Justice Karnan then went on to hold that if a man and a woman of marriageable age have a sexual relationship and the woman becomes pregnant, the couple will be treated as a husband and wife. Even when there is no pregnancy but strong documentary proof of sexual relationship, the couple will still be treated as married. If after having a sexual relationship the couple decides to separate, the husband can only marry another woman after a decree of divorce from the wife. Either part in such couples can approach a family court for declaration of valid marriage.

Karnan directed OH to pay a monthly maintenance of Rs 500 to A, applicable from September 2000, and the arrears of such maintenance until May 2013 within three months.

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High Court’s Judgment

The High Court or Justice CS Karnan was of the view that a “valid marriage” does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized.

In the  case, both man and the woman lived together as spouses and therefore the relationship between them cannot be termed as “illegitimate”. The Court was of the view that “ if a woman aged 18 or above has a sexual relationship with a man aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the wife and the man would be treated as the husband. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is a strong documentary evidence to show the existence of such relationship then also the couple involved would be termed as wife and husband.

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. 

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'.

Pic Courtesy- ViverePuiSaini

Judgment Critcised on Social Networks & Media 

The Newspapers in India tries to forward the 15 pages judgments in one single headlines. So, that they can catch public eye's but at the same time doing such act deceives the one who is reading. As, the people who didn't go through the full judgments and facts of the case, still formulated opinions on their own. Which was followed by the army of tweets and status updates on Twitter and Facebook, mocking the decision of the Honourable Court.

Now, to understand any judgments, one need to go through the facts of the case. In this case,  a poor woman who had been deserted by her husband, was asking for a monthly maintenance. The husband and the wife had been living together for years under one roof and had children. The husband raised the contention that the marriage was not officially registered and therefore invalid. Hence, to ensure the principle of Natural Justice, the Court held that the sexual relationship itself solemnised the marriage. It doesn't talk about a night stand or an affair which goes on for months, this was talking about the serious issue where a relationship which continued for six year and out of which children were born.

The Madras High Court very strongly objected the criticism of the verdict. Justice CS Karnan, who gave the judgment said the court has given the legal relief to the affected woman and without fully understanding the court’s judgment, adverse comments shall not be passed.”