Can marriage be the only licence for sex?

Can marriage be the only licence for sex?

NEW DELHI: The recent Madras High Court judgment refusing to allow a man to slink away from marital responsibilities after fathering two children during a prolonged live-in relationship with a woman is a welcome decision.

The HC order, authored by Justice C S Karnan, was in sync with the Supreme Court's consistent ruling that absence of proof of marriage, as it happens in live-in relationships, could never be a reason for a man to absolve himself of marital consequences which arise after living long with a woman under one roof.

In S P S Balasubramanyam vs Sruttayan [AIR 1992 SC 756], the apex court had said, "If a man and a woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate."

While doing justice to the woman, Justice Karnan followed the SC's footsteps to say, "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."

This is perfectly logical. But what Justice Karnan dished out as 'obiter dicta' (incidental remarks by a judge not necessarily connected to the decision in the case) was rather unnecessary.

While recognizing the freedom of choice available to adults, Justice Karnan said, "If any couple chooses to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow, except on certain exceptional circumstances."

So if a boy of 21 years and a 18-year-old girl decide to "consummate their sexual cravings", then either of them could go to the nearest family court with proof of their sexual act and claim to be married to the other, the HC said.

Is marriage a magnetic tape that gets activated by sex to tie the partners in matrimony the moment they consummate their cravings? Should sex inevitably lead to marriage? Or, is marriage the only licence for sex?

The HC also said if any of a man or a woman after a one-night stand wants to end this forced marriage, then the only option is to move court with a divorce petition, which would take at least a decade to get decided unless there is mutual consent.

This is what the judge intended in his obiter dicta when he said "legal rights applicable to normal wedded couples will also be available to couples who have had sexual relationships which are established".

To deny a man to walk a way from a long-standing live-in relationship is one thing, but to say that even one-night stands would tie a young boy or girl in marriage is something unheard of. Importantly, the Supreme Court disapproved it.

In its October 21, 2010 judgment in D Velusamy vs D Patchaiammal, the SC had discussed in some length the growing phenomenon of live-in relationships in the urban areas of India.

It had come to the conclusion that it would be unfortunate to declare two youngsters to be man and wife just for a one-night stand. It said live-in relationships or 'relationships in the nature of marriage" must have following ingredients:

* 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 co-habited and held themselves out to the world as being akin to spouses for significant period of time

The SC bench of Justices Markandey Katju and T S Thakur had said, "Merely spending weekends together or a one-night stand would not make it a 'domestic relationship'."

It added, "In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit under the Domestic Violence Act of 2005. To get such benefit, the conditions mentioned above by us must be satisfied, and this has to be proved by evidence."

Authoring the judgment for the bench, Justice Katju had said, "If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not, in our opinion, be a relationship in the 'nature of marriage'."

With this authoritative order from the Supreme Court, the Madras HC's ruling, which could have sent a chill down the spine of many youth, will mercifully remain obiter dicta and cannot be enforced as law.  http://timesofindia.indiatimes.com/india/Can-marriage-be-the-only-licence-for-sex/articleshow/20735205.cms