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Sex, marriage, gender: If judges mean well, why do they sometimes talk so badly?

Monday’s Madras high court judgment by Justice Karnan caused debate, outrage and counter-outrage in and between traditional, new and social media, which unfortunately missed the wood for the trees, argues Prachi Shrivastava.

The Supreme Court held in 2010 that a couple is in a “common law marriage” if it has voluntarily cohabited in a “shared household” for a significant period of time, holds itself out to society as spouses, is of legally marriageable age and is not legally encumbered against marriage.

Justice Karnan, and the couple that was the subject of his ruling, could have taken advantage of this precedent.

They had proof of voluntary cohabitation as spouses. She had her deserting partner’s signature on her child’s birth certificate as ‘husband’, and a copy of an application for a “family card” made by him for himself, his ‘common law wife’, and their two children.

She could have therefore made a good case that she should be treated as de facto married to him under settled law.

The tragedy is therefore not that Karnan delivered a form of justice by granting her and her two children maintenance payments from the father, but the way he has done so.

What just happened?

A quick recap of the week that was: The Hindu published its report on Monday - “Couples who have premarital sex to be considered ‘married,’ says HC” – leading with:

“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 report may have arguably oversold with the word “ruled” instead of “observed” – one implying ratio, the other a judge’s personal aside, or obiter (though the rest of the article made the facts of the case exceedingly clear), and social media duly erupted with laughter (comic relief thinly veiled as outrage).

A Firstpost editorial almost immediately criticised the Hindu’s “sensationalist” misreporting in elevating the obiter over the judgment’s progressive ratio, and social media lost out on a good joke (“I don’t care, it is still funny”, tweeted one, nevertheless).

The social media backlash was often holier than thou, with many now moaning about having trusted “sensationalist” reporting and decrying journalists as idiots, with the tide in other media too beginning to turn against The Hindu; everyone’s favourite serious but boring newspaper of record, had overnight turned into a gossip magazine.

On Wednesday, Legally India published the full judgment, which very few if any commentators had seen at that point.

With the benefit of perspective

Having read the full judgment, I think it still deserves outrage.

Yes, there is a progressive core to Karnan’s judgment, at least in its intent to affirm maintenance rights to women in live-in relationships:

“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.”

“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.”

But that’s pretty much where it ends. More than 1,000 words of the 1,273 word conclusion to the judgment on maintenance in live-in relationships, focuses on the effect of “pre-marital sex”, “sexual cravings” and “sexual gratification” on “total commitment” for “declaration of marriage”.

Later, the judge writing those words, goes on to defend them in a press release, on the pretext of protecting the “cultural integrity” of India.

Quoting:

“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”…

“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.”

“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.”

And before one jumps to conclusions for the second time, the cause of worry is not that this “sweeping statement” (as former Madras HC Justice K Chandru called it) has become the law of the land, but that these are the words of a judge who is being hailed as progressive.

Progressively bleak

Things start to look bleak where a person who seems to somehow draw a connection between “sexual gratification”, “total commitment” and “cultural integrity of India”, happens to be a person writing a high court judgment. The fact that those statements are preceded by the words “this court is of the view…” is not to be taken lightly even when they are not effectively binding law.

I was under the impression that the judge’s words (ratio or obiter), as opposed to those of the Khap Panchayats, influence future law making under the common law system followed in India, and therefore should be outside the domain of loose sermons prone to misinterpretation by other courts.

The following defense by the Hindu follows this common law principle:

“It is not rare in the Indian judicial oeuvre to see sound justice being mixed up with irrelevant obiter dicta, for some of the judges in our superior judiciary do tend to pontificate and sermonise when required only to reason, or seek refuge in social mores when law, precedent or practice is available to fall back upon. However, even with some allowance for superfluous observation, the Madras High Court’s view that pre-marital sex between an unmarried man and woman, otherwise unencumbered by any third party interest, amounts to marriage is truly outrageous.”

Karnan’s further observation that after a sexual relationship during cohabitation the man might need to obtain a divorce in court from the woman before marrying another woman, is outside the domain of settled law and foreshadows future law-making disasters.

Risky business

Without getting too much into the muddled up portions of the judgment and guessing at the many possible meanings, the concern should be that a judge who chose to provide maintenance to a woman in a specific live-in relationship case, did so through sweeping arguments about live-in relationships, pre-marital sex and their implications in general, without setting out clear legal principles.

In this generalisation Karnan has drawn a link between private sexual behavior and the legal concepts of marriage and maintenance, ignoring the fact that sexual behavior is dictated by personal perception whereas “marriage” has definitions in law.

And by repeatedly attempting to bring up sexual behaviour and then cover it with the cloak of marriage, Karnan has been anything but progressive.

Even Supreme Court Justice Markandey Katju’s celebrated live-in relationship judgment of October 2010, courted controversy with language such as: “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. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”

One problem the bench faces, not just in India but pretty much everywhere, is that it is dominated by old men who, seemingly all too regularly, even during their finest hours of being ‘progressive’, end up betraying some old-fashioned thinking.

Basic training in gender and language sensitivity could go a long way in avoiding outrage, where really there shouldn’t have to be any.

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