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India Couples Who Have Premarital Sex To Be Considered ‘married,’ Says High Court

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India Couples Who Have Premarital Sex To Be Considered ‘married,’ Says High Court

Admin Singh

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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.

http://m.thehindu.com/news/national/tamil-nadu/couples-who-have-premarital-sex-to-be-considered-married-says-hc/article4824017.ece/?maneref=http://t.co/9JFxiniscJ
 

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Ambarsaria

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How about non-physical sex as in immoral thoughts, dreams of ecstasy, visual touching, aural (as in saying/listening :sippingcoffeemunda:) touching, etc!

Is the court going to provide complete and comprehensive description of the ACT (sex) . ?????????????? lol

PS: Without being flippant, I believe the important aspect should only be that if your actions produce a child (both man and woman), you are accountable as though you are responsible parents, regardless of your marital status. Courts can address issues of criminality and irresponsibility like rape, consent, etc.
 
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Tejwant Singh

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It is shameful to notice that the Justice of India is impotently not capable of passing any laws against rapes, incest, sexual abuse, sexual exploitation, domestic abuse, underage marriages but they can pass the laws to "solemnise marriage" when the adults get into sexual acts.

@ Ambarsaria ji,

There is no age requirement for that.

Tejwant Singh
 

aristotle

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The Courts have cases of rape, molestation, rioting, genocide etc pending before them and instead they decide to be Nazis for teenagers who like to fool around.

@harry haller Ji,
Indian versions of Charlie Sheen will surely be miffed :D
 

kds1980

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The Courts have cases of rape, molestation, rioting, genocide etc pending before them and instead they decide to be Nazis for teenagers who like to fool around.

@harry haller Ji,
Indian versions of Charlie Sheen will surely be miffed :D
The courts are not becoming Nazis for teenagers .Recently Indian parliament raises age of consent for girls from 16 to 18 . So it means any boy having sex with below 18 year old girl will be treated as rapist. So Indian teenagers legally cannot fool around barring 18 -19 year old.

Lets go deeper into judgement

Reiterating his conclusion that sexual ties between a man and woman of marriageable age would raise the affair to the status of a marital union, Justice Karnan said: “If a bachelor aged 21 years or above and a spinster aged 18 years or above had premarital sex with intention to marry and subsequent to this the man deserts the woman, the victim woman can approach a civil forum for remedy after producing necessary substantial evidence to grant her social status as wife. This remedy is not only for the purpose of giving relief to the victim woman but also to maintain the cultural integrity of India.”
http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Archive&Source=Page&Skin=TOINEW&BaseHref=TOIM/2013/06/20&PageLabel=13&EntityId=Ar01300&ViewMode=HTML

How does this make the judgment “progressive”? Well, look at the context. The Madras High Court granted Aysha maintenance money because she had two documents in which Hassan openly claimed himself to be her “husband” and the father of her children. The fact that there was no documentary proof of marriage did not nullify her claim to maintenance money. This widens the scope of the right to claim maintenance beyond the restrictive terminology of “marriage”, “husband” and “wife”. This keeps in mind the increase in the number of couples not getting married nowadays. Yet, don’t forget, since obiters do not hold any authoritative value, this won’t set a precedent. As in you cannot approach a Court of law based on this aspect of the judgment. Decisions of the Supreme Court take precedence over those of the High Court, so you have to first look at what the Supreme Court says.

In 2010, a bench comprising former Justice Markandey Katju and Justice T.S Thakur in D Velusamy v. D. Patchaiammal on 21 October 2010 discussed what came within the hazy confines of a “relationship in the nature of marriage”:
The couple must hold themselves out to society as being akin to spouses.
They must be of legal age to marry.
They must be otherwise qualified to enter into a legal marriage, including being unmarried.
They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The 2010 Supreme Court judgment also stated the following – “merely spending weekends together or a one-night stand would not make it a ‘domestic relationship”.

A Supreme Court bench of Justice G.S Singhvi and Justice A.K Ganguly in Chanmuniya vs Virendra Kumar Singh Kushwaha & on 7 October, 2010, asked the Chief Justice to consider the following questions-
Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?
Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?
Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

Status: Undecided!

Then why on earth did the Madras HC judgment create such a furore in the media? Could be the media was just inebriated by the exuberance of the verbosity of the Obiter. The Hindu was the first to comment on the judgment. Well, less of a comment and more of a stenographer’s job. Next was a more spot-on article by Firstpost declaring the Madras judgment a progressive one. The rest just repeated the same misinterpretations – whether it was Hindustan Times or DNA. NDTV 24×7 in The Buck Stops Here and The Social Network focused their discourse on “vocabulary” and “judicial over-speak”. Surprisingly, The Hindu’s Op-ed titled “Law, Sex and Dicta” failed to understand the judgment in light of the facts and circumstances of the case. The media translated Aysha’s victory and Justice Karnan’s verbosity into a return to the Dark Ages.
http://www.newslaundry.com/2013/06/courtly-affairs-madras-style/
So according to supreme court guidelines you cannot approach court by merely spending weekend or one night stand .

This is very women friendly statement and will help women which are living as wives but not legally wedded
 

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