Sex ground to claim marital status: High Court

Jun 19 2013, 08:29 IST
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SummaryIs civil union, living together in plainspeak, as legal as marriage? Yes, according to Madras HC.

Is civil union, living together in plainspeak, as legal as marriage? Yes, according to the Madras High Court that placed sexual relationship as the one act that elevates such a partnership to that of husband and wife.

Disposing of a maintenance case filed by a Muslim woman, the court had on Monday given an expansive definition to the legal aspect of valid marriage. Aysha from Coimbatore had filed an appeal before the HC seeking maintenance from Ozir Hassan, with whom she had spent five years and had two children. Hassan deserted the family in 1999.

In 2006, a Coimbatore family court ordered Hassan to pay the children monthly maintenance but held that Aysha was not entitled as she could not prove their marriage through documentary evidence.

But Justice C S Karnan Monday pointed to evidence like consent letter for C-section that Hassan signed at the time of the birth of their second daughter, the childs birth certificate that says he is the father, name in family ration card and doctors submission that Aysha underwent family planning surgery at Hassans suggestion to prove that the two could be treated as married.

Hassan claimed that Aysha was not his wife as their relationship was neither registered nor was it recorded in the Nikah book as per Muslim customs. But the court rejected the argument and directed him pay Aysha Rs 500 a month along with arrears since September 2000. To arrive at the judgment, the judge used a contraposition that since marriage could be deemed void if sexual consummation has not been fulfilled, then it also follows that sexual interaction between consenting adults can be deemed as a valid marriage.

If any couple, subject to their attaining the mandatory age of freedom, indulges in sex, then that would be considered as valid marriage and they could be termed husband and wife, the judge said. The court held that if a woman, above 18 years of age, has a sexual relationship with a man over 21 years, and gets pregnant, then she would be treated as the wife.

The judge said even if she does not become pregnant, they would be deemed husband and wife if there is strong documentary evidence to prove the relationship. The court also said that if after such a relationship if both decide to separate, then the husband cannot marry again without a divorce.

Legal rights applicable to the normal wedded

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