•  •  Dark Mode

Your Interests & Preferences

I am a...

law firm lawyer
in-house company lawyer
litigation lawyer
law student
aspiring student

Website Look & Feel

 •  •  Dark Mode
Blog Layout

Save preferences

What does the ‘pre-marital-sex = marriage’ Madras HC judgment actually say? Read it here

Madras HC on 'sexual cravings'
Madras HC on 'sexual cravings'
Read the full judgment of the Madras high court, which was the cause of controversy, outrage and humour on social and other media after reports that Justice CS Karnan said that pre-marital sex could solemnise a marriage.

A column on The Firstpost almost immediately criticised The Hindu’s initial coverage and headline as sensationalist, arguing that the judge, despite a number of obiter “incendiary statements”, “is clearly ruling on the issue of domestic partnership, awarding rights to couples who may not legally married but have lived together in every other way as spouses”.

Karnan today defended his judgment in a press release, saying it was misunderstood, and “not only for the purpose of giving relief to the victim woman, but also to maintain the cultural integrity of India”, as reported by Hindu.

The Times of India weighed in with lawyers’ reactions today.

Facts of the case

The petitioner A, a Hindu, and respondent OH, a Muslim, lived under one roof, had sexual relations, and had two children between 1994 and 1999. There was documentary proof that OH was the father of at least the second of such children. There was also proof that OH had applied for a “family card” for himself, A and the two children. However, A’s marriage to OH was not registered in the Islamic marriage register - the Nikah book. In 1999 OH deserted A and her two minor children.

In 2000 she filed for maintenance of Rs 5,000 per month from him for herself and the two children, claiming that he earned Rs 25,000 per month from his business. OH denied that A was his wife, said she was a “dubious” woman who was his co-worker, and that there was no documentary proof of religious solemnisation of marriage between them.

The family court judge observed that though the two children belonged to the respondent and were each entitled to a maintenance of Rs 500 per month from OH, and while A was entitled to Rs 1,000 per month from OH towards litigation expenses, A was not the wife of OH in the absence of documentary proof supporting their marriage.

However, when A filed a revision petition against this order of the family court, Justice CS Karnan at the Madras high court held that customary rites are not necessary to solemnise a valid marriage, and as long as there is no legal bar to A and OH’s marriage, while they have also had children together, A’s status has been elevated to ‘wife’ of OH.

Justice Karnan then went on to hold that if a man and a woman of marriageable age have a sexual relationship and the woman becomes pregnant, the couple will be treated as a husband and wife. Even when there is no pregnancy but strong documentary proof of sexual relationship, the couple will still be treated as married. If after having a sexual relationship the couple decides to separate, the husband can only marry another woman after a decree of divorce from the wife. Either part in such couples can approach a family court for declaration of valid marriage.

Karnan directed OH to pay a monthly maintenance of Rs 500 to A, applicable from September 2000, and the arrears of such maintenance until May 2013 within three months.

The judge’s words

The judge’s conclusion begins on page 9 of the judgment:

16 (i) A valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized. In this case, customary formalities have not been followed, but the respondent had signed in the hospital records authorizing Dr. Sheela, when the petitioner/wife had been admitted on 31.12.1998 for her second delivery. The second delivery was a caesarean one for which the respondent gave his consent to the doctor in the prescribed form.

(ii) The learned trial Court judge has concluded that the second and third petitioners are illegitimate children of the respondent and the same has not been challenged by the respondent herein through any appeal and the respondent has signed in the “Live Birth Report” of the hospital. In the prescribed hospital records viz., “Live Birth Report”, there are separate columns for husband and wife to attest their signatures and this had been adhered to and as such, it is sustainable under law. Therefore, the argument of illegitimate children does not arise in this case, in view of the commitments already made by the respective parent in the hospital record as maintained by the hospital authorities.

(iii) The petitioner herein and the respondent have not been debarred from marriage through a religious decree, for example, in the Hindu Religious Custom, upto 7th degree/generation a boy and girl is forbidden to marry if they are termed as brother and sister in the 7th generation as mentioned above.

(iv) The petitioner herein and the respondent herein have no encumbrance or other disqualification for solemnizing their marriage as per their customs. For solemnizing marriage, legal aspects are to be placed on higher scale and the customary aspects do not command such a scale. In this case, the respondent has signed in the “Live Birth Report” and given his consent for a caesarean operation for the birth of the second child and as such, the respondent had openly and officially admitted that the petitioner is his wife/spouse.

(v) Without legal encumbrance or third party interference or without affecting third party’s rights, both the petitioner and the respondent lived together as spouses and begot two children. Therefore, illegitimate relationship does not arise in this case. Marriage solemnization is only a customary right and obligation, but not a mandatory one. Hence, this Court treats the petitioner and the respondent as spouses in normal life with a typical identity of their own.

(vi) 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 had 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. This Court is of the view that if a woman aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the ‘wife’ and the man would be treated as the ‘husband’. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such relationship then also the couple involved in such acts would be terms as “wife” and “husband”.

(vii) This Court is of the further view that even after such a sexual relationship, if both decide to separate due to difference of opinion, the ‘husband’ cannot marry without getting a degree of divorce from the Court of law against the ‘wife’. He could not marry a second time without getting such a decree as it had been established that the sexual relationship had existed between them and consummation had taken place.

(viii) This Court is of the further view that if the bachelor has completed 21 years of age and the spinster 18 years of age respectively then they acquire the freedom of choice as guaranteed by the Indian Constitution. Consequently, any couple of whose 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. Therefore, the marriage formalities as per respective religious customs viz., tying of thali, exchange of garlands, exchanging of finger rings, circling around the matrimonial fire pit or registering of marriage at a Government Registration Office is only to comply with each one’s respective religious customs for the satisfaction of the society. However, if any couple, subject to their attaining the mandatory age of freedom,who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife”, as a result of their choice of freedom. On the other hand, in some cases, both bachelors and spinsters, who adhering to all formalities of their respective religion and culture with marriage solemnized, find it that their conjugal rights for sexual consummation had not been fulfilled, then such a marriage is deemed to be a failure, void or lapse. So, in total, what is expected after adhering to norms and formalities is the sexual consummation by the couple which has occurred in the case on hand. Hence, the main legal aspect for valid marriage is consummation or sexual interaction such as in the instant case, the point is squarely and wholly applicable. Of course, this Court’s further view is that if necessary, either party may approach the Family Court for declaration to the effect of marital status by supplementing documentary proof of evidence in order to prove the sexual relationship. After such a declaration from the concerned forum, the victim can establish herself in all the government records or any other relevant records where she can encrypt her name as wife to her counterpart. Legal rights applicable to the normal wedded couples will also be applicable to couples who have had sexual relationships which are established.

(ix) In some cases, both the bachelor and spinster even after observing all the formalities of their religious customs and solemnization of marriage, are unable to have sexual relationship, as such consummation is deemed to be non-occurring, such a marriage would be referred to as an invalid marriage. What is expected after adhering to normal formalities is the consummation by the union (spouses) which has occurred in the present case.

(x) What the main legal aspect for valid marriage viz., consummation between both spouses has happened even before the formalities. Therefore, in the instant case, the point is elaborately explained.

The instant case concludes with the main perceivable details as detailed above.

17. Therefore, after taking into consideration the trial Court judgment and perusing the grounds raised in the revision and this Court’s view listed in (i) to (x), mentioned above, this Court allows the above revision and directs the respondent herein/husband to pay a monthly maintenance of Rs.500/- to the petitioner herein from the date of petition i.e., from the month of September 2000. This Court further directs the respondent to pay the arrears of maintenance upto May 2013, within a period of three months from the date of receipt of a copy of this order. Thereafter, the respondent/husband has to pay monthly maintenance as per this Court order, on every English calendar month on or before the 10th of every succeeding month directly or through Court.

18. In the result, the above revision is allowed…

Madras High Court judgment on maintenance, sexual relations and marriage

Judgment via @Ghair_Kanooni and @JaskiratSB on Twitter.


Click to show 6 comments
at your own risk
By reading the comments you agree that they are the (often anonymous) personal views and opinions of readers, which may be biased and unreliable, and for which Legally India therefore has no liability. If you believe a comment is inappropriate, please click 'Report to LI' below the comment and we will review it as soon as practicable.