The remarks by Mr Justice CS Karnan of the Madras High Court that pre-marital sex between an unmarried man and woman, otherwise unencumbered by any third party interest, amounts to marriage, has set off a stormy debate. The court stated that if a couple of legal age chooses to indulge in an intimate relationship, this would confirm the relationship as a marriage. The ruling by Mr Justice Karnan further held that religious rites and traditional wedding ceremonies are merely societal formalities and therefore not required to legally concretize a marriage.
The issue surfaced after the judge declared that the physical union between a man above 21 and a woman above 18, arising out of “sexual cravings” would be considered a “valid marriage” and thus they would become “husband and wife”. What’s more, he stated that when a couple seeks to separate after being in such a relationship, the “husband” cannot marry anyone without getting a divorce from the “wife”.
A plethora of caustic remarks over the court’s observation were inevitable, with some claiming that it would tantamount to legalizing polygamy while others opined the ruling would create legal complications in dealings with sex workers. But that would be missing the point. For, in this instance the court has prioritized co-habitation above customary or religious rites when it comes to assessing the status of a relationship and, in a way, has endorsed that such a relationship has its accompanying responsibilities. This is not unjustified.
The judge’s ruling came after hearing an appeal by a woman who sued her former live-in boyfriend of five years to pay child support for their two children. A lower court had ruled the live-in partner did not owe any money to the woman because there was no documentary evidence of a legal marriage. The judge, hearing the appeal, however, overturned the ruling, stating the couple’s intimate relationship was tantamount to their being wed.
The case revolved around a maintenance claim with the judge giving weight to the fact that the man had signed the birth report and given consent for an operation at the time of the birth of his children. Moreover, the two had been living under the same roof and had a relationship akin to that of a married couple. Under the circumstances, the couple’s status vis-à-vis each other merited being viewed on a par with a married couple wherein the two had placed themselves in a situation where they could not disavow their relationship.
Of course, marriage involves rights and responsibilities which cannot be arrogated merely on the basis of a sexual relationship. An apex court ruling in 2010 had recognised a live-in relationship as one akin to a marriage in the context of the Protection of Women from Domestic Violence Act, 2005. But in 2010, a Delhi Court opined that sex outside marriage was equivalent to rape because the man had coerced the woman into sex by promising marriage. In 2013, the apex court overturned a similar conviction by raising the bar of proof.
Mr Justice Karnan is clearly ruling on the issue of a domestic partnership, awarding rights to couples who may not be legally married but have lived together in every other way as spouses. Perhaps the courts are inching towards a more realistic view of current relationships and sexual mores in society.