Pre-marital sex: India

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Premarital sex

Premarital sex implies marriage: Madras HC

See also the page Rapes in India: court verdicts, especially the section 'Is sex on promise of marriage rape?'

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

The Hindu June 17, 2013

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’.

Justice C.S. Karnan passed the order on Monday while modifying an April 2006 judgment of a Coimbatore family court in a maintenance case involving a couple. The lower court had ordered the man to pay monthly maintenance of Rs. 500 to the couple’s two children and Rs. 1000 as litigation expenses. The lower court observed that the woman’s wedding with the man had not been proved by documentary evidence. Hence, she was not entitled to maintenance. In her appeal to the High Court, the woman’s counsel contended that she was legally married and had two children in wedlock. Justice Karnan said he was of the view that a valid marriage did not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised. In the present case, the woman and her husband had no encumbrance or other disqualification for solemnising their wedding as per their customs. For solemnising a wedding, legal aspects should be placed on a higher scale than the customary aspects. 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.

“Without legal encumbrance or third party interference or without affecting third party rights, both the petitioner and the respondent lived together as spouses and begot two children.” Therefore, the question of an illegitimate relationship did not arise. Wedding solemnisation was only a customary right, but not a mandatory one. Hence, the judge said, he was treating the couple as spouses in normal life.

“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.”

The judge directed the woman’s husband to pay her a monthly maintenance of Rs.500 from the date of petition, i.e. from September 2000. The arrears of maintenance up to May this year should be paid within a period of three months.

Lawyers’ interpretations of the order

HC ruling on live-in divides experts

ASubramani | TNN 2013/06/19

The Times of India


Chennai: The Madras high court did not issue a blank cheque when it said on Monday that marriage meant ‘consummation of sexual interaction’ between a man and woman of marriageable age, with or without the rituals.

Some jurists and lawyers, chiding knee-jerk interpretations of the order, especially on social-networking portals, caution that the HC had not attempted to set down terms for a man-woman relationship outside marriage. Far from that. All it said, in fact, was that after a prolonged relationship as partners, a man or woman cannot relieve himself/herself from its consequences and liabilities, on the ground that it had not been registered or solemnised.

Advocate and matrimonial case specialist T K R Sudha, who is also treasurer of the Madras high court advocates association (MHAA), said the order was almost in tune with umpteen orders of the Supreme Court and other high courts on the issue of live-in relationships. “Though matrimonial laws have not been amended adequately to accommodate and address the complexities of live-in affairs, there are apex court rulings which are laws of the land till a specific law is enacted. The soul of the judgment is in line with apex court rulings, only words are different,” she said.

However, senior advocate and former HC judge, K Chandru said, “Matrimonial issues must be addressed on case-bycase, facts-by-facts and person-by-person basis,” although the presumption of marriage is possible in cases of domestic violence cases, which have a specific provision dealing with household and live-in relationships.

But in general, he warns against the tendency to make sweeping statements in family matters.

Chandru feels the order is likely to be misunderstood by subordinate courts, which might force people into relationships merely because they have had sexual relations.

“Though perfectly all right when read in the context of the case in hand, certain phrases and words in the judgment do disturb me. Terms such as ‘sexual consummation’, ‘sexual gratification’ and ‘sexual interaction’ are not politically correct in this age.

While higher judicial forums have adopted a holistic view of the live-in relationship and tried to maintain a fine balance between a usual marriage and an unusual marriage, this verdict tries to draw a black-and-white portrait,” said a senior judicial officer.

Badar Sayeed, former additional advocate-general of Tamil Nadu, felt the court had attached too much value to the sexual aspect of a wedding.

While agreeing with Justice C S Karnan’s ruling that he had to presume that the parties to the case — Aysha and Ozir Hassan — were wife and husband because there was evidence to show they lived together for about five years and had two children during the period, she said the judge’s views on primacy of sexual interaction between the couple as obiter dicta have no force of law.

As for the court’s suggestion that either party may approach the family court for declaration of their marital rights, activist and advocate Geetha Ramaseshan said this would open a floodgate of litigation in the family court.

One-night stand not marriage: HC

Shibu Thomas | TNN | Updated: Jun 11, 2017, One-night stand not marriage under Hindu law: HC: The Times of India


HIGHLIGHTS

Any sexual intercourse which took place by choice or by chance or by accident is not a marriage: HC

' A child born out of such an encounter may not have rights over the father’s property, if there is no marriage'

MUMBAI: A one-night stand or a physical relationship between a man and a woman does not fall under the definition of marriage under Hindu laws, the Bombay high court said recently in an important order. A child born out of such an encounter may not have any rights over the father's property, if there is no marriage, the court added. "Broadly, either customary solemnisation of marriage is required or performance of legal formality is a condition precedent to label that relationship as a marriage... Any sexual intercourse which took place by choice or by chance or by accident is not a marriage," said Justice Mridula Bhatkar.

The court pointed to Section 16 of the Hindu Marriage Act that restricts itself to "marriage" but recognises that the society is going through changes. "In some countries, homosexual unions are accepted as marriages; so also live-in relationships and children born within such relationships have posed as complicated issues and a challenge to legal thinkers to define the term marriage whether in a wider or narrow meaning," the judge said. Under the Hindu Marriage Act, marriage, even if subsequently declared as void, has to be proved to decide the rights of the child. In the case before the court, the man had two wives. Since there was proof that the man had married a second time, the court held that though his second marriage was void, the daughter from his second wife had the right to a share of his property.

Consensual heterosexual relation between adults

Consensual sex no offence, says SC

Dhananjay Mahapatra | TNN

From the archives of The Times of India 2007, 2009

New Delhi: Consensual heterosexual relation between adults, including premarital sex, is no offence except in cases where the partners are liable to be charged for “adultery”, SC ruled.

It said the courts attach a lot of importance to personal autonomy and a person indulging in an immoral act need not necessarily be a culprit in the eyes of law. “Morality and criminality are non co-extensive,” said a bench comprising CJI K G Balakrishnan and Justices Deepak Verma and B S Chauhan on Wednesday.

The SC said in the present social milieu, some view pre-marital sex as an attack on the centrality of marriage while a significant number see nothing wrong in it. This conflict of opinion on morality did not make pre-marital sex an offence, it ruled. “Notions of social morality are inherently subjective and criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy,” it said.

This clear finding and the judicial logic supporting it got substantial space in the apex court’s judgment quashing 23 complaint cases against south Indian actress Khushboo.

Justice Chauhan, writing the judgment, said, “While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside marital setting, with the exception of ‘adultery’ as defined under Section 497 of the IPC.” The bench also did not understand the uproar over its comments on pre-marital sex and live-in relationships saying the apex court had in 2006 held that a live-in relationship between two consenting adults of opposite sex did not amount to any offence with the exception of adultery.

It said there was an urgent need for reactionary forces to tolerate unpopular opinions expressed on sensitive issues by writers, authors and other persons and not hound them by instituting complaint cases against them. “It is not the task of criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the freedom of speech and expression is indeed very high and there should be a presumption in favour of the accused in such cases,” the bench said.

It said Khushboo’s remarks did provoke a controversy since the acceptance of pre-marital sex and live-in relationships was 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,” the SC said.

Single & pregnant? You can skip classes: HC

Abhinav Garg | TNN

From the archives of The Times of India 2007, 2009

New Delhi: The Delhi High Court has suggested that Delhi University and Bar Council of India (BCI) frame rules allowing relaxation of attendance norms for students missing classes due to pregnancy. Reminding the two institutions that ‘‘society today is changing at a rapid pace and we must be in tune with the realities’’, the court on Monday admitted the petitions of two Law Faculty students who were short of attendance because of pregnancy.

The court went a step ahead and said that pregnancies of single women should also be treated sympathetically by educational institutions as far as attendance is concerned. ‘‘The Supreme Court has given liberty to live-in relationships and it has held that premarital sex is not an offence,’’ Justice Kailash Gambhir observed while admitting the two petitions through lawyer R K Saini.

The students, both married, claimed that DU had ignored their plea that the shortfall in their attendance was because of the advanced stage of their pregnancies. HC ‘‘suggested’’ to BCI — the body that regulates legal education in the country — that it frame rules for pregnant LLB students allowing them relaxation in attendance.

‘‘If any woman candidate is deprived or detained in any of the semesters just on the ground that she could not attend classes being in advanced stage of pregnancy or due to delivery, such an act would not only be completely in negation of the conscience of the Constitution but also of women’s rights and gender equality this nation has long been striving for,’’ the court noted, dismissing the arguments of the university.

At the same time, the court dismissed a batch of petitions filed by other LLB students seeking a direction to DU to declare their results which were withheld because they had failed to meet the 66% attendance criterion.

The judge remarked, ‘‘It is high time law students understand that there is no royal road to education and education teaches only those in attendance.’’

See also

Age of consent in India Live-in relationships: India Pre-marital sex: India Rapes in India

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