Tuesday, June 18, 2013

Premarital sex and live-in relationships – clearing the legal misconception!

Typing Madras High Court in the Google search today brought with it many results. Most of them with the heading that roughly meant having premarital sex would equal to being married. There was no mention of the minimum time you had to have lived together, no mention of any facts of the case and certainly no mention of the principles if any laid down by the judgment. My first thought was that of anger and frustration. I began to wonder if we were ever going to stop being regressive and maybe accept the way society was progressing and work with that? Then I felt helplessness that even if a 20 something year old wanted to make a choice to live his life a certain way he would be unable to do so for the fear of being tagged as “married” and all that came with it, especially if the relationship ended badly. Finally, I wondered – could the Madras High Court, after the only other case regarding premarital sex that created such social media frenzy was an appeal in the Supreme Court from the same court, pass a regressive judgment after the Supreme Court has passed a fairly progressive one only a few years ago?

The Supreme Court in the Khushboo Case[1] had taken a neutral and progressive stance with respect to premarital sex and live-in relationships that “the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex”

The Madras High Court case in question, in my mind is one which was dealing with maintenance a woman wanted for herself and her two children, who were born as a result of her relationship with the man and this fact had been endorsed by the man himself on the birth certificate. The man had deserted the women and took the plea that they were never married and hence he was not liable to pay any maintenance. The women on the other hand stated that they had married and she was his legitimate wife and the children his legitimate children. It is thus safe to assume that the case dealt with the scenario where the man and women were living together for a number of years and had given birth to not one but two children, clearly showing that it was consensual. It in no way was a case which was passing judgment over whether premarital sex was permitted between two heterogeneous adults and what the consequences of the same would be.

I believe the lines that created such social media frenzy among people are “...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," and “Wedding solemnisation was only a customary right, but not a mandatory one.” While I agree that the graphic details that one is subjected to reading the various news articles and the direct language used by the Judge to deal with the issue have attributed to the outcry, the larger section of the public (and media community) seems to have completely ignored the legal standpoint of the order passed by the Madras High Court – which being a legal order should be viewed accordingly!

Dealing with a similar fact pattern, over two decades ago the Supreme Court in S.P.S. Balasubramanyam v. Suruttayan[2] had held that “if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.”  Further, in 2010 the Supreme Court in D. Velusamy v. D. Patchaiammal introduced very clearer the concept of common law marriages in India and stated that "a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time"
According to my understanding, the Madras High Court has used the same parameters for reaching its conclusion, and the judgment seems to be in conformity with the law laid down by the Supreme Court. The hue and cry created over this is something I fail to understand since the principle is literally the law of the land since over two decades now and has been continually reinforced as well by the courts.

Another view that most people seem to be have been taking (or fearing) is that if they are with someone long enough, it can be attributed to be a marriage, without either one of them intending it to be so. Personally I don’t think that unless you are in a live-in relationship, this order or any other similar order has any bearing on your life. If however you are in a live-in relationship and are living like a married couple, then what the Supreme Court in 2010 stated has bearing on your life - that a live in relationship when continued for a long time, cannot be termed as "walk in and walkout" relationship and there is presumption of marriage under Section 114 of Evidence Act[3].

Whether we are becoming a progressive society or heading towards becoming a socially intolerant and regressive society is something we decide as a whole, and not something the courts of the country are commenting upon. However, to settle the fears, you can have premarital sex or continue to live the way you deem fit, and the Madras High Court order in no way puts into jeopardy your freedom to do so. With respect to the basic principle of being labelled married or the children you have as legitimate – the Supreme Court has stated that since 1992. For the unaware, at least this brings to fore an important principle laid down by our courts.  

[1] JT 2010 (4) SC 478
[2] AIR 1992 SC 756
[3] Madan Mohan Singh v. Rajni Kant;  AIR2010SC2933

No comments: