The Madras High Court has ruled that unmarried couples who have premarital sex are to be considered as 'married'. Lawyer Mihira Sood joined IBNLive readers for an interaction on the significance and implication of the court's ruling.
Q. What are the positive sides of this new rule over this generation? Asked by: suman
A. It seems that the Court was aiming for a ruling that would encourage people to approach sexual relations with some caution and circumspection. However, this cannot be the way - this ruling is based on a complete misunderstanding of sexual relations and of marriage, both in modern society as well as in law.
Q. If exchange of rings and garlands has no legal basis to decide if one is married and only sex is, then this judgement throws the entire concept of marriage on its head. I grew up thinking that the laws are derived from generally accepted social moral principles - or aren't they? Asked by: Anurag
A. I agree, the implication of this ruling seems to be that marriage is all and only about sex, and vice versa. What would then be the position of a married couple that doesn't have sex, or if there are multiple sexual partners, or whether 'sexual gratification' as spoke of in the judgment includes non-penetrative forms of sexual interaction, or sexually charged interaction. This ruling is very strange and must be challenged in the Supreme Court.
Q. Just curious to know Mihira, what kind of 'documentary proof', as the court terms it, can a couple produce to establish the sexual relationship they share? Asked by: Meenu
A. This just goes to show what a poorly thought-out judgement this is. Presumably it may refer to emails, text messages etc. that clearly speak of sexual relations, but to assume the existence of such documentary proof in every or even in most cases, is very far-fetched.
Q. What constitutes : 1.Documentary proof for a sexual relationship? 2.Certain exceptional considerations where this judgement wont apply? Asked by: vispi.kaikobad
A. As I replied to an earlier question, these vague pronouncements in the ruling only go to show just how ill-conceived and poorly though-out the ruling is. Documentary proof may presumably refer to emails, text messages etc. that clearly speak of sexual relations, but to assume the existence of such documentary proof in every or even in most cases, is very far-fetched. As far as exceptional considerations are concerned, this is perhaps to cover cases where neither party wishes to invoke this interpretation, or where it is clearly the understanding from the start that sexual relations will not lead to marriage. I can only assume, given the lack of explanation in the ruling itself.
Q. Also, I want to ask what about the anyone who is into multiple sexual relationships? Are you encouraging or legalising Polygamy, yet again? Asked by: Nishtha
A. Exactly Nishtha. What about multiple sexual relationships, or sexual gratification which doesn't involve penetrative sex, or married couples that do not engage in intercourse, or any other of the myriad situations in which sexual interaction occurs. Sex may be a part of married life as traditionally understood, but the institution of marriage involves much more, and the world of sexual interaction may be completely separate. To equate them is to equate 2 non-comparables, and is based on a completely incorrect notion of the two, both in law and in society.
Q. If the sexual partners make promises to get married, will adultery be considered legal too? Asked by: Shahid Syed
A. According to this judgement, sexual partners don't even need to promise to get married, they already are. But given the judgement's silence on surrounding issues like multiple partners, adultery etc., it is a judgement that is ripe to be overturned on appeal.
Q. How is registration of marriage a step taken only for appeasement of society/religion? Is it not a legal step above anything else? Not the same as garlands/mangalsutra. And could you please clarify exceptional considerations? Asked by: Gautam
A. Exactly Gautam. The whole reason marriage registration or other procedures are laid down in law is because marriage is a legal institution that has a certain meaning and a certain place in public life, and to dismiss that as only for appeasement of society/religion is utterly misconceived. It is one thing for the Courts to provide legal protection in cases of live-in relationships or other marriage-like relationships, and quite another to extend it this far. Not only does it fail to understand the manner in which sexual interaction occurs in much of today's society, it also strips the institution of marriage of all meaning other than just legally recognised sex, while it is and has always been much more.
Q. I expect a an appeal on this verdict. What are the chances of an appeal succeeding? Asked by: sundar1950in
A. Very high. I don't see any legal basis for this ruling.
Q. Considering the fact that this judgment is erroneous, and I assume there are precedents of SC which have clearly stated the essentials of a valid marriage, don't you think it is easy to strike this judgment down? Asked by: Pradeep
A. Yes Pradeep, once an appeal is filed I don't foresee any trouble in it succeeding.
Q. Should a government have a say in a religious bond like marriage? Asked by: nikhil_vb
A. The reason is that marriage is not just a religious bond, and is not at all a religious bond for many people. What it means for people personally, and that includes in terms of religion, is one thing, but since it influences various norms and areas of public life, to that extent, the State does lay down the law.
Q. The ruling may be justified in that case where the couple had children. But how can sex be synonymous with marriage? What about 1 night sex or same-gender sex? Also brothels? Asked by: Rajorshi
A. As I said earlier Rajorshi, the judgment leaves many questions unanswered and while it is one thing to extend legal protection to live-in relationships or couples in a marriage-like relationship, it is quite another to equate all sex with marriage and vice versa.
Q. Do you think that bypassing all the rituals and families mutual acceptance , and being declared as husband and wife after having sex, will mature the Indian thinking or will rage for a protest? Asked by: Nishtha
A. The judgment is so divorced from law as well as social reality, that I don't think it will have any impact on the way people approach marriage or sexual relations.
Q. Can the woman/man not apply for maintenance without having to be married? What are living-in laws and cant they be used here? Asked by: Kartikay
A. Courts have extended maintenance to couples in live-in relationships or where there are children, so in fact there is no need to pronounce them as married in order to protect the woman who may require support.
Q. Doesn't 'exceptional consideration' open up a can of worms. Can considerations be that subjective. Don't they need some codification to avoid likely chaos? Asked by: vispi.kaikobad
A. Yes they should have been set out clearly, and the fact that they haven't is itself a valid ground for appeal.
Q. Marriage is not just a sexual relationship.How come this decision has come? Asked by: sundar1950in
A. I agree, this decision is completely divorced from what marriage means to most people. The judgment has tried to use the elevated position marriage holds in society to caution against premarital sex, but in doing so, has had the unintended effect of reducing the opposite and reduced the institution of marriage to little more than a farce.
Q. If the sexual act will make two Husband & Wife why all the other paraphanelia? An affidavit to that submitted to the registrar should get the certificate of marriage registration. Could it be done for so many who need a certificate for official and Visa purposes? Asked by: sundar1950in
A. I agree, this has reduced the social understanding of marriage to a farce and renders it ripe for abuse.
Q. A lot of people will want to know whether this ruling has any applicability outside the state of Tamil Nadu. However, even if the 'persuasive value' is weak and other High Courts reluctant to pronounce on such a matter, what implications does this have for couples living in other parts of the country? Asked by: SV
A. While ordinarily, the effect would be far more localised, it is slightly different with marital and other personal laws, since personal status cannot change from place to place, and there are several options that are statutorily provided for a person to choose a particular jurisdiction. In any event though, there are enough Supreme Court precedents that lay down and interpret the conditions for a valid marriage, so it is difficult to see this judgment standing up to any legal argument.
Q. On a lighter note, what it means for those who are in extramarital affairs.. does it mean that there is an automatic divorce with the current wife and marriage with the one having extramarital affair.... are we going to get into polygamy system? interesting :-) Asked by: Bharat
A. I agree Bharat, the lack of application of mind to the various situations that can arise makes for some very amusing possibilities!
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