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Conjugal conundrums -K Venkataramanan
-The Hindu


The order may give rise to property and employment benefit claims relating to unmarried people. Parents could find sexual partners of their children making demands for a share of their assets.

The discussion on the Madras High Court verdict on the implications of sexual relationships between unmarried couples has been wide-ranging - from mirthful responses to the suggestion that such liaisons could attain marital status under certain circumstances, to sympathetic readings that see the order as providing a sound basis for granting relief to women deserted after sexual exploitation. Overshadowed in this discourse are: what exactly Justice C.S. Karnan has said, whether he is laying down new law or merely dispensing justice in one case and, most importantly, whether the rule laid down relates to sustained cohabitation or just sexual consummation.

A brief explanatory note he released to the media in response to public reaction throws some light: If a bachelor aged 21 years or above and a spinster aged 18 years or above had pre-marital 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 woman victim but also to maintain the cultural integrity of India. There is not much legal value to this non-judicial explanation, as it cannot alter the text of the judgement, but it is a fact that his order limits its applicability to never-married men and women, of legal age to marry, entering into a sexual relationship based on choice. The order does refer to a person's right to approach a civil court for a declaration of marital status based on documentary evidence. Therefore, it is clear that he is laying down a general rule on according marital status to sexual relationships under some conditions. However, there is no reference in his order to any intention or promise to marry. And, while giving his reasoning behind his rule [Para 16 (i) to (x)] there is no reference general to‘living together' or ‘live-in' relationships or any other phrase referring to cohabitation, barring a reference in Para 16(v) to the petitioner and respondent in this case, who, it says "lived together as spouses and begot children."

However, there are many references to "consummation" and its cognates. He stresses on consummation being the necessary ingredient of a marriage, whether or not it results in pregnancy. Once consummation occurs, a relationship could be deemed a marriage, and this aspect will supersede religious and customary formalities and even registration. The order also uses inverse logic: as non-consummation could render even a formal marriage invalid, consummation prior to any formalities ought to be treated as marriage.

A summary of the ruling emerging from his order will be: if a man of 21 years and above and a woman aged 18 and above, based on their choice, without any other legal disability or third party encumbrance, enter into a sexual relationship, such relationship could be termed a valid marriage and they could be treated as husband and wife. Either party has a right to get a family court to declare that they are married by providing documentary evidence for the "sexual relationship." It is not correct, as many assume it to be, to see this verdict as limited to giving marital status to a live-in relationship. While cohabitation, sustained or sporadic, will indeed be covered by this ruling, it is not a necessary condition, as the emphasis is on sexual consummation.

There is a high probability of the lower judiciary understanding this verdict to cover casual sexual encounters too, contrary to those who had criticised media reporting of this case as sensationalised or exaggerated. A few sentences, especially those that say couples who "consummate their sexual cravings" and "indulge in sexual gratification," should be treated as husband and wife can be justifiably understood as treating all premarital sex as a valid marriage. It is easy for social media commentators to be sceptical about the versions put out by legal reporters, and seek to limit the import of this order to live-in relationships, but the order means much for a woman yearning for marital status after sexual consummation but not cohabiting with a man. She or her lawyer cannot be barred from pleading occurrence of physical consummation as a ground for getting a declaration of marriage based on this judgement - or any other legal consequences of marriage, for that matter.

One will have to await the implications of such a declaration based on consummation alone. It may give rise to claims to property and employment benefits relating to unmarried people. Just as marriage registration is far from universal, the habit of appointing nominees for bank accounts and deposits is also not widespread. Parents may face a challenge to their claim to amounts lying in bank accounts and insurance policies, and even accident compensation or any other dues they may have from government and other entities, based on claims from sexual partners their children may have had.

The verdict indeed is in line with a series of judgements by different courts in treating non-marital relationships as legitimate, but the moot point is whether the High Court ought to have expanded on the existing body of decisions - which has brought non-formal relationships within the purview of laws relating to maintenance and domestic violence - to elevate them to marital status.