Couples who have premarital sex to be considered ‘married’,says HC
The couple can establish self as each others' spouse in any government records.
Is civil union – or living together in plainspeak – as legal as marriage? Is it formal enough to mandate a divorce decree if one of the partners were to marry? Yes,according to the High Court of Madras,which placed sexual relationship,not customs and rituals,as the one act that elevates such a partnership into that of husband and wife.
Disposing of a maintenance case filed by an abandoned Muslim woman and her two daughters,the court on Monday gave an expansive definition to the legal aspect of ‘valid marriage’,leading to a torrent of reactions regarding the two sides of enhancing a relationship to a legal arrangement.
Aysha from Coimbatore filed an appeal before the High Court seeking maintenance from Ozir Hassan,with whom she had spent five years of marital life and had two children before he deserted the family in 1999. A family court in Coimbatore had in 2006 ordered him to pay the children a monthly maintenance,but held that Aysha was not entitled to for the same as she cannot prove their marriage through documentary evidence.
Accepting her argument,Justice CS Karnan pointed to evidences – consent letter for caesarean operation that Hassan signed at the time of birth of second daughter,her live birth report and birth certificate that have him as the father,family ration card that showed him as the head of the family,and her doctor’s submission that Aysha underwent family planning surgery at his suggestion – to prove that the two could be treated as spouses.
Though Hassan claimed that she was not his wife as it was not registered or even recorded in the Nikha book as per Muslim customs,the court rejected it saying the documents contained enough proofs to hold the couple husband and wife,and directed Hassan to pay her Rs 500 per month,including the arrears since September 2000 when the petition was filed before the family court.
While the court brought justice to the single mother who was deserted,the path it took to reach there has given rise to a variety of critiques,interpretations and criticisms based on the interpretations.
To arrive at the conclusion that the marriage was legally valid despite not being registered or solemnised,the judge used the contraposition of the argument that a marriage could be deemed failure,void or lapse if the conjugal rights for sexual consummation had not been fulfilled. Hence,“the main legal aspect for valid marriage is consummation or sexual interaction.”
“…the marriage formalities as per respective religious customs namely tying of tali mangalsutra,exchange of garlands,exchanging rings,circling around the matrimonial fire pit or registering of marriage at a government registration office is only to comply with each one’s respective religious customs for the satisfaction of the society. However,if any couple,subject to their attaining the mandatory age of freedom,indulges in sexual gratification,then that would be considered as valid marriage and they could be termed ‘husband and wife’,” the judge said.
If a woman over 18 years of age has a sexual relationship with a man over 21,and becomes pregnant,she would be treated as the wife,held the court. It then went a step ahead and added that even if she does not become pregnant,they would be deemed husband and wife if there is strong documentary evidence to show the existence of such a relationship.
Thus,if after such a relationship both decide to separate due to difference of opinion,“the ‘husband’ cannot marry without getting a decree of divorce from the court of law against the ‘wife’,” the judgement said,adding: “…any couple who 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.”
“Legal rights applicable to the normal wedded couples will also be applicable to couples who have had sexual relationships which are established,” concluded the court,directing Hassan to pay maintenance for his ‘wife’.
On the one hand,the judgement elevated unregistered civil unions as a legally valid form of relationship,which in turn recognises the rights of a woman and offer her adequate legal protection. However,in holding sexual relationship as the basis of a marriage,it has nevertheless added more ambiguity on the issue.
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