Couples who have premarital sex to be considered ‘married,’ says HC
Jun 17, 2013 11:28 PM , By Special Correspondent | 113 comments

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.

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  • An order passed with a good hope of minimizing the incidences of pre- marital sexual relationships turned out the other way round with lots of ambiguity. This order was given in a context of saving the miserable lives of children accidentally arising out of their parents foulplay. A women can also claim benefits from the man who had mutual fun with her. By the term mutual I meant with mutual consent. It looks insane to prove a relationship with documentary evidence. Relationships are nowadays more materialistic. If this order becomes an act the lawyers dealing with these cases will start minting money. Hope this order becomes more refined.
    From: Dhiraj
    Posted: Jun 20, 2013 at 8:56 IST
  • After reading the whole story I think that headline is out of proportion. But this judgement will be a landmark in Indian judicial as cosmopolitan culture like live in relation is prevalent in these day. Children born from these relation will get their due legal right from biological parents. But court has not yet recognised the live in relation valid. A girl in live in relation can't recognized as wife legally.
    From: Manish
    Posted: Jun 20, 2013 at 0:05 IST
  • Now this is more a case of 'Sensational Journalism' least expected from The Hindu. The actual report explains the verdict as specific to the case, where as the headline suggests just the opposite! riduclous.
    From: Nik
    Posted: Jun 19, 2013 at 22:07 IST
  • a sensible and relevant judgement..will certainly check misuse/abuse of females and deter these exploiters...i salute the justice for such indepth thinking for this social betrayal to females..however the maintainance amount is must be....minimum 20000 INR.
    From: kaushal narayan
    Posted: Jun 19, 2013 at 21:06 IST
  • I think the media try to generalize the verdict. I cannot imagine that the court could actually say that just because one had a sex one should marry. It must be a case to case basis. I tend to think it may be a purposeful/non-purposeful misinterpretation of the verdict. Whether the partner gets a maintenance is something has to be decided on case to case basis. The most important and remarkable side of this verdict that I see is, at last, those children were born out of wedlock will also get status and consideration.
    From: Maya
    Posted: Jun 19, 2013 at 15:30 IST
  • Agree with Vijay, i think this has been blown out of proportion. The context must be clarified by TH, otherwise this judgement is utter nonsense and will be a total failure.
    From: Shreya
    Posted: Jun 19, 2013 at 11:12 IST
  • The HC decision clearly states that the sexual relationship should be between a bachelor and an unmarried woman then they would be treated as legally married. It would mean that if a married man and a married woman, not married to each other, involve in a sexual relationship then it would not come under the influence of this decision. In effect, extra marital affairs cannot be brought under the scan of this decision. Also the decision has used the word "and" which would mean if either of the party is married otherwise, then also this decision will not stand in that case. I am unable to react to this decision. It has opened a whole big pandora. Let us hope that the judiciary comes out with something more prudent.
    From: Mahesh
    Posted: Jun 19, 2013 at 10:43 IST
  • So much for "sense, not sensationalism"! The Hindu manages to thoroughly (and intentionally, I presume) misinterpret a simple case of maintenance/ child support. The court rules that partners in a civil relationship or co-habitation and their offspring could be granted property, financial, and legal rights should they wish it- a fairly progressive ruling by Indian standards.
    From: Kinita S.
    Posted: Jun 19, 2013 at 9:46 IST
  • Looks like this will open a Pandora's box.Since having pre-marital sex is the trend of the times, the judgement can really cause a lot of confusion. Is sex all that there is to a marriage? Why generalize based on one case? Trust the judgement will be clarified, otherwise, it appears that the beneficiary will no doubt be the advocates who can expect huge surge in their business.
    From: vsesh
    Posted: Jun 19, 2013 at 9:27 IST
  • In one stroke we have lost so many things!Since sex is the entry to marital world there will not be any adultery!There is no solemnisation of marriage all that the concerned man woman need to do is declare the when and where abouts of their sexual adventure!There will not be any prostitution!The woman on her part can take a call whether to call that event a rape because that would be an easier option to get out of the wedlock or is it deadlock? Even the man can think of this escape route! This quite a master stroke of a judgement!
    From: Vasant Kagalkar
    Posted: Jun 19, 2013 at 9:25 IST