Pre-marital relationships post-Madras HC Order

By Prabhakar Timble
02 July 2013 08:44 IST

It is unusual and nonstandard for any judge or court to offer supplementary justification and defend its judgement after the same is competently delivered Disapproval and criticism from various quarters cannot be a ground for the judge to answer censure in the media. The judgement itself is taken as a speaking and reasoned order and does not warrant clarificatory instructions which are in fact reactions to the strong condemnation of the judgement. Justice C. S. Karnan of the Madras High Court delivered an obnoxious verdict elevating a non-marriage as deemed marriage on the ground of sexual relationship, intimacy and sexual consummation. Later the judge issued the clarification stating that the granting of social status as wife to an unmarried female on the ground of pre-marital sex is to protect and maintain the cultural integrity of India and held that a woman can approach a civil court for declaration of marital status based on evidence. The court also said that 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'. This part of the judgement is uncalled for as the statutes have defined marriage. Matrimony is not an area unoccupied by legislation for the courts to determine or declare. This ruling of the High Court would create confusion in the subordinate judiciary. It would open up litigation for granting of marital status as well as for dissolution of non-existent marriages, something in the nature of exit from sexual relationship.

Medicine acceptable

Having said the above, the progressive part of the judgement is the relief and prescription sought to be provided for children and unwed mothers. The Madras High Court was ruling on a maintenance claim made by a woman who had lived with her partner and had begot two children. The man had declared himself as father of the children and the petitioner as the wife in the ration card. The judge penetrated through the veil to read the rights of the children and the mother in terms of maintenance and economic security, though there was nothing on record to prove marriage. This should be welcomed as a reformist approach on grounds of equity and justice. However, the judge went overboard treating the couple as spouses in normal life.

The intervention of the court to provide financial support to the woman and children holding the relationship as almost “equivalent” to marriage is liberal and broad-minded. It is salutary that the court takes into consideration a relationship outside the sphere of customary and religious rites and weighs issues to protect women. The   contentious issue is with the court declaring and granting marital status to the sexual relationship with emphasis on sexual consummation. It is this quotient of the judgement which should be severed and detached as the same would promote absurdity. The judgement is well intentioned and the irrational part needs to be chopped in a review.

Clumsy facets

“If any couple choose to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow”. Statements in the judgement such as these are inflammable, provocative and non-judicial. They could be offshoots of the personal biases, prejudices and supposedly cultural foundations.  The criticism on the judgement has been largely out of proportion due to such observations in the order of the Madras High Court. Adverse reactions in the social media were conditioned by the eyeball seeking headlines in print and electronic media rather than an understanding of the judgement in its totality.

A complete reading of the judgement justifies the legal reliefs granted to the petitioner. The guiding principle has not been only sexual intimacy but includes prolonged and continuous cohabitation and acceptance of “ownership” of children. Hence, merely because the formal marriage has not been solemnised as per religious norms or registered or no evidence could be adduced of the formal marriage, it should not perpetrate injustice to the petitioner and the children.

To the extent to which the judgement is loaded on sexual union and consummation to include the notion of marriage, it needs to be corrected. This stand has no roots in law or custom. Sexual intimacy not resulting in consummation is a ground for rendering marriage voidable. In the Madras High Court judgement, sexual relationship is a ground which converts a non-marriage into a matter for declaring marital status by a civil court. The judgement does not speak on the marital status in case of prolonged co-habitation without sexual intimacy and sexual gratification without consummation.

Financial relationships

The Madras High Court judgement would definitely require a revisit. At the same time, instances of women lured into love and being spurned after pre-marital sex and pregnancy are also on the rise. In the tribal and backward communities, women are cheated and left to fend for themselves with the social stigma writ large on their faces. This judgement could be a forerunner for insertion of relevant sections in the context of financial protection of women and children. The valuable part of the judgement is the consideration of non-formal and non-marital relationships for maintenance and security. The judgement could be a precedent to establish financial relationships and the issue should stop here. To elevate sexual relationships to marriage by seeking declaration from the Court is foolishness.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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