Couples who have premarital sex to be considered ‘married,’ says HC

I didn’t understand this verdict.

What is the difference between Premarital sex, Live in Relationship and Marriage?

Does this means breakups after any relationship become a legal procedure if the couple has had sex? Who benefits from this?

Link shared by Dr Arun

Couples who have premarital sex to be considered ‘married,’ says HC

“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’.”

While any man (or woman) should be required to provide child-support to any children they have within or outside marriage, but does acknowledging paternity mean they are also admitting that they are married to the mother?

And should any child be seen as legitimate or illegitimate?

“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.”

“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.”

And what about couples who are in Live in relationships? Are they going to be considered married too?

67 thoughts on “Couples who have premarital sex to be considered ‘married,’ says HC

  1. That’s a complete paradigm shift. Leaves me speechless!

    On second thoughts, this is really going to make matters worse. Doesn’t this mean prevalence of polygamy, more divorces, and more obtuse structures and sub- structures in the society? Really, there will be technically no difference between legitimate and illegitimate (wife or children). Who knows who comes to my home tomorrow and lays claims on ……..noooooooo!😦

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  2. The text is confusing — parts of it is easy to agree with: A religious ceremony should not be a requirement for marriage, thus a couple who wants to be married, should be able to get this recognition without holding any particular ceremony. Other parts have easy answers: should a child be considered legitimate ? Yes. All children are “legitimate”, it’s entirely absurd to uphold a legal distinction, children are children and they’re all legitimate, and it does not matter what papers their parents have or don’t have.

    The rest is hard to make sense of, I sincerely doubt that the court really said that anyone who’s had sex automatically gets all the duties — and all the priviledges — the state bestows upon the married.

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  3. I think this country really needs to understand that there is a difference between “sex” and “marriage”, and either of them can be used in an absolute context and don’t necessarily have to be place in the same sentence, at least not in sequence.
    And Indian courts really need to focus their energies on graver women’s issues like all forms of sexual harassment and un-recognised crimes such as marital rape.

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  4. Hmmm, why isn’t it the same as co-habiting in Sweden? Isn’t it good to have this kind of relationship recognised? Perhaps, it’s just one step forward.

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  5. Dear Indian Homemaker,

    I notice you too doubt the accuracy of the article. I think all the Madras HC wanted to say is: both members of a relationship are responsible for consequences like children. It is not at all clear that the judge intended for this to be interpreted as ‘pre-marital sex is marriage’. Both the article (and, I’m afraid your blog post) don’t emphasize this ambiguity enough.

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  6. Can I bring up something here? What about same-sex couples who engage in “pre-marital” sex? They can’t be legally married under Indian law, for it doesn’t recognize such relationships period. The most they can be is a live-in couple, if they are committed to one another, and I’m willing to bet that not all of them are celibate either. So what now? Are they married too? If that’s the case, the Madras HC might have just taken one step forward and one step back, but has still managed to stay 3,000 paces behind.

    Joking aside though, the ruling is insane. The only thing this is going to do is perhaps give a free pass for more forced “marriage” and “marital” rape, if the only benchmark for being lawfully wedded is just sex.

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  7. I have never understood the government’s – any government’s – fascination with the sex lives of its citizens.

    How does one obtain “documentary proof for a sexual relationship.” ? I suppose a child would suffice..how about a video tape? Or would still pictures do it? Or a DNA test of seminal fluid from the woman’s vagina? (Sorry if that’s gross.)

    And, yes, all children are legitimate.

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  8. I dont understand- if the HC wanted both the parents to take care of the child, what about circumstances in which the father doesnt want the child and the mother goes ahead and has the baby and is forced to pay child support? We say that women are entitled to their bodies and should not be forced to have kids or abort them and it is their choice what they do with their bodies. So, for a woman’s choice to have kids, how can the father be penalized? Suppose a couple has sex and the woman gets pregnant. The guy is not interested in having babies but the woman loves kids and goes ahead. How different is this scenario from forcing a woman to abort the child or bear the child(esp when a woman is married)? Shouldnt then having a child in the first place be a mutual decision? If the woman did want kids so badly and went ahead, shouldnt she be ready to be the care giver as well and not demand child support?

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  9. Hi IHM,

    I was particularly amused by the use of the word ‘elevated’ in one part of the judgement. I have extracted the same below :

    “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.”

    LOL.

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  10. Basically this verdict is going to give rise to dangerous situations. People who are trapped in abusive relationships are now going to find it more difficult to get out. Breakups are not going to be easy at all, especially if the guy(or girl) is weird. Oh the horrors( shakes head at the mere thought) -i can exactly imagine what my ex bf would have done if such a verdict was in place earlier. He would have ensured that i dont move on with life and wouldnt have given me a “divorce”

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    • Yeah, this article explained it well. Actually, news papers made Madras HC a joker today. But HC has some reason to say, though I feel it’s leads to many generalizations in future.

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    • I too noticed and read this article in FirstPost and was about to send the link to IHM. I did suspect that the reporting was not fully correct and wanted to read the full judgement before formulating an opinion on the judgement.
      Regards
      GV

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  11. This is fucking ridiculous. Why are all levels of Indian government so obsessed with regulating what two consenting adults do with each other? Why can’t they do something substantial that actually makes women’s lives safer on the streets and their homes? I guess safe environment for women free of harassment and abuse is not part of the high and mighty Indian morals/culture that they so want to uphold. If a child is born when parents are not married, I agree the father should be financially liable for child support and that child should not be called “illegitimate” and denied opportunities in life (e.g school admissions). Beyond that just having sex with someone is NOT MARRIAGE, not in someone’s wildest imagination. Should I now be worried about my ex-bf coming after all my property/investments/savings that I have earned myself as alimony for good or not-so-good roll in the hay sessions? I hope not.

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    • Live in Relationships were recognized by the Supreme Court more than two years ago.

      The difficulty in understanding was caused by this:

      //To be fair, the judge did indeed make a number of incendiary statements, such as: “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.” But none of these are pertinent or have legal value given the actual case at hand and the Supreme Court’s own rulings on premarital sex.//

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  12. It seems like the HC is talking about common law marriage. The report seems to have misunderstood what was said. But I agree, the idea of common law marriage itself is ridiculous. A man and a woman living together or just sleeping with each other, casually, seriously or otherwise…whatever…are making a conscious choice NOT to marry.

    For the government to step in and now say: “We don’t care if you want to marry or not, you are legally married in our eyes” is tantamount to forced marriage.

    That said, I am amused. It is usually the feminist lobby that demands more and more “rights” for women in live in relationships.

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    • Well, marriage is women friendly these days, and going to be more women friendly in future. All laws are favoring women. There is a law that gives 50% share to wife in husbands property including ancestral property, discussed in the parliament and may be come out as it is without any change. Feminists want to cover the live-in also. So, that men don’t have other options. That’s why they are making all these laws for live-in also. Remember all these applicable for men only, if the genders are reversed, nothing is going to happen. Man can’t claim he is married to that women even in the present case, if that women not in favor of it. No court is going to accept that.

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      • May be, but who’s fault it is? Is it fault of bride’s father or her husband? Definitely the fault of her father. But punishment will go to husband. She divorce him and get maintenance and every benefit. But, what the husband get? He just lose his wife and reputation and lot of money.

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        • The fault lies with whoever forces the issue, be it the father, the husband, the in-laws, whatever. Typically though, it is the husband who after marriage refuses to agree to a divorce. Also, you’re talking about how the husband loses his wife, reputation and a lot of money. That’s inherently incorrect. In Indian society, it is either the wife or both couples who overwhelmingly get the bad rap for committing such a “sin” in the eyes of everyone else. Often times, its the wife, because she “stepped out of her bounds” and “couldn’t adjust” or whatnot. As if the husband never has to adjust, period.

          Secondly, not every Indian wife gets divorced with “every maintenance and every benefit”. She only gets her due, so long as she can prove that her husband makes a certain amount of money or is actually entitled to ancestral lands. If her husband does not provide an accurate financial statement, the wife often walks away with next to nothing, and in many cases, with no life skills to take care of herself or any children that she may take with her.

          The laws in India are not imperfect in many, many ways. Laws that exist to protect women exist for a reason, but do not work because the deeply entrenched prejudices in our society permeate what should be an unbiased system. You don’t have to look closely to realize that our system is unfair and ripping people off left, right, and center.

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        • @A,
          You are saying the fault lies whoever force, but the reality is different, it is the man (read as husband) who punished,period. True, both affected if marriage breakdown but only if that marriage accepted by both previously. Not in the case that one woman oppose it other don’t know that other party didn’t like this. In this case the women who take divorce, actually get what he/she want. True she also face some problems, but it is her fault or her father’s fault. The other man (husband) simply affected by this at very greater level. And he don’t deserve that. It’s time for women to take responsibility for their actions, instead of blaming other man.

          The alimony or maintenance is nothing but extra punishment for the man who is not at all in the fault, in these situations. If that the women accepted that marriage whole heatedly, perhaps he could have been saved from painful divorce and maintenance which may cost even 50% of entire property? And what about girls property? it never counted, only man’s property divided. And you say, there is a reason for this? I am saying, what ever may be that reason it’s just robs man without his fault,period.

          Women have the right to get ancestral property also. So, get it from the father and then enter into marriage. So, there will be no financial hardship after divorce. If that is still less, then she can ask for some maintenance from husband but not 50% of entire property. That too she is not able to work or able to find a work for her qualifications. Look at the laws already there in many countries.

          And what about the pre-nupticals? They save everyone’s interests? don’t they?

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        • You’ve kind of missed the thread of my argument.

          “You are saying the fault lies whoever force, but the reality is different, it is the man (read as husband) who punished,period.”

          Punished how? Punished from a legal viewpoint? As I addressed before, unless the wife who is seeking a divorce can somehow show that her husband earns as much as he earns, it is legally impossible for her to seek the proper amount of alimony as is her due. Much of the time, this loophole is abused by men in order to keep their earnings to themselves. They either submit false financial statements, or simply hide them, or make them inaccessible to their wife and lawyers. If the wife cannot prove her husbands earnings, or if he submits an augmented, incomplete financial statement, her alimony is literally nothing.

          As for being punished from a societal viewpoint, you are incorrect to state that a man is punished, period. As I said before, much of the time it is the women who bear the brunt of the blame for a broken marriage. “Why did she not adjust to her husbands/in-laws demands?” “Why did she not submit to her husband?” “Why did she want independence?” “Why did she want to go to work after marriage?” These are the questions that people ask of women. No one ever questions the male. No one asks, “Why did he force her to stay at home?” “Why did he make so many demands of her and her family?” “Why did he behave violently towards her?” Even in many cases of sexual/domestic abuse, it is STILL the woman who is blamed, in spite of being the victim. So who is punished, really?

          “Not in the case that one woman oppose it other don’t know that other party didn’t like this.”

          I see where you’re coming from here, but you’re missing several key points. For starters, women who often seek divorce do not fall into the category you are carving out for them. They are not simply women who “oppose” the marriage but went ahead anyway. They are women who are coerced into it. They are forced, threatened, and bullied into silence. The women who often want divorce are the ones who agreed to marry someone, thinking that they were good and honest but finding out the shocking reality only days into the marriage. The women who want divorce are the ones who are abused in their marriages, who have their lives and their dreams ripped away from them. The women who want a divorce are the ones who /did/ make a choice, often a harried one, only realizing after marriage that their partner and his family were not who she thought they were. The women who want a divorce ARE the women who are taking charge of their lives, taking back the control, and punishing those responsible for making their lives miserable.

          The women, or (to speak your language), the people who want divorce are not one dimensional. Their reasons are not as simplistic as you claim them to be, and their lives are not as cushy as you think they will end up as. A divorced woman, especially in India, is a pariah, a social outcast in many cases, and is often looked down upon severely. You really think that a woman, let alone any sane human being, would want this for their lives? They don’t. They choose it because the alternate option is misery for the rest of their lives, or death.

          “The alimony or maintenance is nothing but extra punishment for the man who is not at all in the fault, in these situations.”

          Please read what I wrote about alimony and Indian law. You’ve either skimmed my argument, or you purposely decided to ignore it. Either way, I’ve addressed the alimony issue once again here, so read that as well.

          Let me put it simply: men in India do not pay 50% alimony, except in rare cases. The law for this exists in the same way the law against discrimination exists. It’s there to look pretty, but in reality often does nothing. Not to mention that given how long it takes for legal matters to get resolved in India, alimony for many divorce cases is the least of all worries, especially on part of the wife. They simply want out, and nothing more.

          Also, when you argue about women who are financially stable asking for 50% alimony, you’re incorrect there as well. Women who work, or have income are not eligible for that, because alimony payments are dependent upon her income as well. So if the wife divorces her husband and has a well-paying job, often the husband does not have to pay as much alimony.

          50% is for cases where the woman is left destitute in the wake of her divorce and has no means to support herself and her children. And in many of those cases as well, the husband often manages to get away with paying absolutely nothing. Alimony in India is not as clear cut as that in other countries, especially given the fact that many people in India have no scruples when it comes to ripping people off. It is what our system is based off after all.

          No one asks for 50% alimony, and no one receives it. It is there as a benchmark, but is certainly NOT the standard.

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  13. ‘Who Killed my daughter Ishrat Jehan ?’ – Statement by Shamima Kauser mother of deceased Ishrat Jehan
    Posted by subhash gatade

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  14. I don’t understand the verdict either. Also isn’t the changing the definition of marriage? Also what if there are situations where people are engaging in sexual activity with more than one person? Then of course there are situations where rape is involved. Yeah this decision makes no sense, just another way to try to control people their sexual & relationship choices.

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    • I think for some type of people their definition is marriage = sex, so therefore sex = marriage. Or maybe it’s just a way for them to say proudly that there’s no pre-marital sex going on in India, the way low divorce rates are boasted about.

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  15. We have already established a set of laws where there is a marriage registered, registration process etc., etc., why mess with that.
    so 2 people have sex and they are considered married and then they have sex with 2 other different partners and then what Adultry????

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  16. In Canada and the US, it is the legal responsibility of both parents to provide financial support to the child born outside of marriage. The couple do not have to get married. They can go and legally marry someone else. But they are still responsible for THIS child. Child support is seen as a child’s right. This is regardless of the father’s or mother’s desire to have a child. This child has all of the rights that a child born within a marriage does.

    Paternity is proved by getting a positive on the DNA test. Custody generally goes to the mother unless she has health issues or if the father contests it. Parental property doesn’t automatically go to the child, it depends on what is put into the will.

    In the Madras HC case, it would’ve been okay to ask the father to provide child support, but there is no necessity to pronounce them married. Being married has a lot of other implications. A man and a woman can have independent lives, be married to other people, but still be jointly responsible for the child they created together.

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    • Actually, in several American states, a woman can legally abandon her child by dropping him/her off at a govt facility. In fact, Nebraska, for a while, had no upper limit on the age of the child you could abandon and one woman drove from California to Nebraska to legally abandon her 14 year old son.

      Needless to say, men have no choice in this matter. They have no right to legally abandon the child and must pay child support. It should also be noted that a man who has been tricked into believing that a child is his, will also be responsible for child support before and after the deceit is established by irrefutable DNA evidence.

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      • True Abhishek. Also note that abandonment laws are meant to protect children’s lives. When there is a history of abuse or drugs in the family, or the mother is desperately struggling economically or socially, when there are mental health issues that are unrecognized or undiagnosed due to lack of education or formidable costs, the state prefers that the child is handed over by the parent to foster care, so that the child’s safety is ensured.

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  17. So if you have been in multiple relationships, they can book you for Multigamy (is that even a word? What’s next, stoning until death as punishment for premarital sex?

    And does this hold for same-sex couples as well?

    The law should stay out of our bedrooms, what goes on there is none of their business. Sheesh.

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  18. After I read the link that Arun provides more up i can say that India doing same mistakes like some eastern european countries. It is good to inspire from the actual sistem and laws that another countries having, when you see that their sistem working nice, but is more important to know that if you borrow something from their sistem and you don’t modify enough to adjust to your actual sistem and culture then all leads to disaster. What Madras HC did was to take one law from western sistem, a law that protect the long term live-in relationships and they modified it in a wrong way. Also what is the need for such a law when society and culture forcing you to have a marriage in India. I want to see first that are so many couples that choose to stay together for 8-10 years, to have baby without marriage and then to want to renounce to relation. If they really wanted to protect the long term live-in relationships then was suppose to think more in which shape they promote this law. A country can’t just borrow small pieces from other sistems without thinking if that will suite to their sistem that is completely different. Same India did with the law that protects the rights of the wife in marriage. In western sistem the wife is entitled to take 50% from what is considered common goods that couple produce in time of marriage. And is completely normal. But how can you take such a law and to say that wife is entitled to have 50 % from the husband’s goods or family’s husband goods? It is just not right. I think India should work to laws that are protecting woman and empower but in a right way. Give them the rights to be educated no matter what, help them to be independent and have a job, protect them agains dowry sistem, agains rapes, violence, forced marriage, forced sex and patriarchal thinking. Give them right to be and feel free. Then you can apply rest of rules that protect their rights in other ways. In a way the sistem give the impression that protect the women but all that is doing is to complicate more and more their lifes and also to increase gap between genders.

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  19. The judge clarifies his stand. Now it is clear..
    ——————————————
    “If a bachelor aged 21 years or above and a spinster aged 18 years or above had premarital 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 victim woman but also to maintain the cultural integrity of India.”

    http://timesofindia.indiatimes.com/city/chennai/Live-in-My-verdict-will-protect-women-judge-says/articleshow/20673113.cms
    ——————————————–
    From when courts are bothered about culture of India??

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  20. Not the main topic under discussion here, but I found something else that was also disturbing and that was, “given his consent for a Caesarean section for its birth”. Why is it that the man is giving consent for a procedure that the woman will be undergoing? Isn’t the consent supposed to come from the actual person undergoing the procedure?

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  21. Its both surprising and disappointing how people are being judgemental and ridiculing it in spite of the fact that there are different interpretations and ambiguities involved.

    Almost everyone here feels that no child should be called illegitimate. But kids born out of sex without marriage in India are considered to be illegitimate and they have to live with that emotional torture throughout their life. For all those cases where pre marital sex leads to pregnancy and/or child birth, this verdict not only makes sense, but its actually required.

    Just wanted to share another side of the coin.

    http://soniabhatia.blogspot.in/2013/06/if-every-child-is-legitimate-now-i.html

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  22. Pingback: Girls morally bound not to have sex before marriage, says fast track court judge | The Life and Times of an Indian Homemaker

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