CHENNAI: The Madras
high court did not issue a blank cheque when it said on Monday that
marriage meant 'consummation of sexual interaction' between a man and
woman of marriageable age, with or without the rituals.
Some jurists and lawyers, chiding knee-jerk interpretations of the order, especially on social-networking portals, caution that the high court had not attempted to set down terms for a man-woman relationship outside marriage. Far from that. All it said, in fact, was that after a prolonged relationship as partners, a man or woman cannot relieve himself/herself from its consequences and liabilities, on the ground that it had not been registered or solemnised.
Advocate and matrimonial case specialist T K R Sudha, who is also treasurer of the Madras High Court Advocates Association (MHAA), said the order was almost in tune with umpteen orders of the Supreme Court and other high courts on the issue of live-in relationships. "Though matrimonial laws have not been amended adequately to accommodate and address the complexities of live-in affairs, there are apex court rulings which are laws of the land till a specific law is enacted. The soul of the judgment is in line with apex court rulings, only words are different," she said.
However, senior advocate and former high court judge, K Chandru said, "Matrimonial issues must be addressed on case-by-case, facts-by-facts and person-by-person basis," although the presumption of marriage is possible in cases of domestic violence cases, which have a specific provision dealing with household and live-in relationships. But in general, he warns against the tendency to make sweeping statements in family matters. Chandru feels the order is likely to be misunderstood by subordinate courts, which might force people into relationships merely because they have had sexual relations.
"Though perfectly all right when read in the context of the case in hand, certain phrases and words in the judgment do disturb me. Terms such as 'sexual consummation', 'sexual gratification' and 'sexual interaction' are not politically correct in this age. While higher judicial forums have adopted a holistic view of the live-in relationship and tried to maintain a fine balance between a usual marriage and an unusual marriage, this verdict tries to draw a black-and-white portrait," said a senior judicial officer.
Badar Sayeed, former additional advocate-general of Tamil Nadu, felt the court had attached too much value to the sexual aspect of a wedding. While agreeing with Justice C S Karnan's ruling that he had to presume that the parties to the case - Aysha and Ozir Hassan - were wife and husband because there was evidence to show they lived together for about five years and had two children during the period, she said the judge's views on primacy of sexual interaction between the couple as obiter dicta have no force of law.
As for the court's suggestion that either party may approach the family court for declaration of their marital rights, activist and advocate Geetha Ramaseshan said this would open a floodgate of litigation in the family court.
Former city public prosecutor of Chennai M Shahjahan said he was tempted to partly agree with the ruling, but wondered how such a view would square with other matrimonial issues such as right to property and separation. "How will the two living together separate and what will be the terms of separation?" he said. "Can the offence of bigamy under Section 494 IPC be invoked if the man or women in a live-in relationship or who had 'consummated' their sexual interaction has another parallel relationship? What about partition and property rights?"
Advocate and former special public prosecutor for the human-rights court V Kannadasan said Justice Karnan's order would squarely apply to the case he had handled alone. "It can never become a law, and be a precedent for all cases concerning live-in relationships or where a man of 21 and woman of 18 had 'consummated' their sexual interaction," he said.
Though it appears to have strengthened the right to choose one's own way of life, Monday's order has clearly added to the already tangled web of matrimonial laws and their interpretations.
Some jurists and lawyers, chiding knee-jerk interpretations of the order, especially on social-networking portals, caution that the high court had not attempted to set down terms for a man-woman relationship outside marriage. Far from that. All it said, in fact, was that after a prolonged relationship as partners, a man or woman cannot relieve himself/herself from its consequences and liabilities, on the ground that it had not been registered or solemnised.
Advocate and matrimonial case specialist T K R Sudha, who is also treasurer of the Madras High Court Advocates Association (MHAA), said the order was almost in tune with umpteen orders of the Supreme Court and other high courts on the issue of live-in relationships. "Though matrimonial laws have not been amended adequately to accommodate and address the complexities of live-in affairs, there are apex court rulings which are laws of the land till a specific law is enacted. The soul of the judgment is in line with apex court rulings, only words are different," she said.
However, senior advocate and former high court judge, K Chandru said, "Matrimonial issues must be addressed on case-by-case, facts-by-facts and person-by-person basis," although the presumption of marriage is possible in cases of domestic violence cases, which have a specific provision dealing with household and live-in relationships. But in general, he warns against the tendency to make sweeping statements in family matters. Chandru feels the order is likely to be misunderstood by subordinate courts, which might force people into relationships merely because they have had sexual relations.
"Though perfectly all right when read in the context of the case in hand, certain phrases and words in the judgment do disturb me. Terms such as 'sexual consummation', 'sexual gratification' and 'sexual interaction' are not politically correct in this age. While higher judicial forums have adopted a holistic view of the live-in relationship and tried to maintain a fine balance between a usual marriage and an unusual marriage, this verdict tries to draw a black-and-white portrait," said a senior judicial officer.
Badar Sayeed, former additional advocate-general of Tamil Nadu, felt the court had attached too much value to the sexual aspect of a wedding. While agreeing with Justice C S Karnan's ruling that he had to presume that the parties to the case - Aysha and Ozir Hassan - were wife and husband because there was evidence to show they lived together for about five years and had two children during the period, she said the judge's views on primacy of sexual interaction between the couple as obiter dicta have no force of law.
As for the court's suggestion that either party may approach the family court for declaration of their marital rights, activist and advocate Geetha Ramaseshan said this would open a floodgate of litigation in the family court.
Former city public prosecutor of Chennai M Shahjahan said he was tempted to partly agree with the ruling, but wondered how such a view would square with other matrimonial issues such as right to property and separation. "How will the two living together separate and what will be the terms of separation?" he said. "Can the offence of bigamy under Section 494 IPC be invoked if the man or women in a live-in relationship or who had 'consummated' their sexual interaction has another parallel relationship? What about partition and property rights?"
Advocate and former special public prosecutor for the human-rights court V Kannadasan said Justice Karnan's order would squarely apply to the case he had handled alone. "It can never become a law, and be a precedent for all cases concerning live-in relationships or where a man of 21 and woman of 18 had 'consummated' their sexual interaction," he said.
Though it appears to have strengthened the right to choose one's own way of life, Monday's order has clearly added to the already tangled web of matrimonial laws and their interpretations.
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