Madras High Court Judgment on Premarital Sex: The Reality

India was left astonished on the morning on 17th June. Newspapers, Everyone’s Facebook status, BBM status and tweets were about a certain high court’s judgment stating if you have pre-marital sex with a person, you will be considered married to them.

People suddenly found it extremely funny to ask others how many times have they been married and or how many wives have they left behind.

Premarital sex in IndiaThe general tendency in our country is to raise a hue and cry for everything and then comes mockery by the “we have an opinion about everything”. The media channels, newspapers can twist and interpret things in a way most convenient to them and most entertaining to public.

After going through an article in the Bar&Bench website, written by Mr. Mrinal Satish, I came to a conclusion that insight into the facts and evidence in this case is important before forming an opinion.

If only anyone would have looked into the details and facts of the case, they would have realized, however Bizarre the judgment might have been, it provided Justice to the needy.

Facts of the Case

The case, “Aysha v. Ozir Hassan” Popularly known as the “Madras High court pre-marital sex case.” is an excellent example of beating around the bush.

Before getting to the relevancy of the judgment, it is necessary to look into the facts of this case.

The petitioner, Aysha had filed a petition for maintenance in the Coimbatore Family Court. She claimed that she married the respondent, Ozir in 1994, in a mosque with Muslim customs. They had two children from the marriage; Ozir then deserted the family, and denied their marriage. To substantiate her claims of being Ozir’s wife and the children being theirs, Aysha produced the live birth report of their second child, where Ozir was named as the father of the child along with the documents for a C-section where he signed as her husband. Ozir first denied the marriage. He then argued that the marriage was not valid as per Muslim customs, because it had not been recorded in the Nikah book.

The Family Court ruled that Ozir was the father of the two children, and hence, was required to pay them maintenance of Rs. 500 per month. However, it ruled that since Aysha’s marriage to Ozir had not been proved through documentary evidence, she was not his “wife” and hence, was not entitled to maintenance. Aysha approached the High Court against this order of the Family Court.

Aysha’s counsel argued that the Family Court had erred in holding that Aysha was not Ozir’s “wife” solely on the basis of the non-registration of the marriage in the Nikah book in the mosque. And also that major evidences provided by them were overlooked by the family court.

The Judgment

After looking into the facts, the judgment given by the Madras high court held,

“It held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The Court held that if a woman aged 18 and above, and a man aged 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” The Court ruled that ifand only if, a man and woman have a sexual relationship would they be considered to be validly married. Consequently, if they break up, the man cannot marry anyone else unless he gets a decree of divorce from a court. On the other hand, if a man and a woman get married after following all formalities, but fail to consummate their marriage, such marriage will be “a failure, void or lapse.” It would be an invalid marriage.

Thus, Ozir was liable to pay maintenance to all three, Aysha and her two kids.

Conclusion

The purpose of judiciary in our country is to serve justice to the weak and victimized and the judgment given completely solves the purpose.

For a layman it is but obvious to take it in a generalized way, criticize how the judgment was articulated, and mock about it, but a little insight into the facts of the case, it does not sound THAT absurd.

The judgment agreed is controversial and if I may, a lousy approach to the right path, but it defiantly is on the right path.

As we can see here, the court ruled in the favor of the “victim”, and so it can be said  that it is progressive in nature since it legalizes an alleged live-in and takes a different turn from the usual patriarchal trends in our country.

It is also important to know that if the Madras high court would have given precedents from the Supreme Court judgments, the result would have been the same. They should have taken this alternate approach to justice.  Only god and the Judge himself know what led to this controversial facade.

As far as the articulation is concerned, I would personally be interested in seeing how the Supreme Court reacts to this (that is, if Ozir appeals)

Let’s hope the judgment is upheld with a better explanation by the honorable Supreme Court and guidelines regarding similar cases are set once and for all, so that no new way of marrying off people is invented by the court and rebuked by the public.

Article by

Aastha Mishra

Picture Courtsey- tumblr.com

By Aastha Mishra on June 26, 2013 · Posted in Court Verdicts, Informative, Legal Issues, Legal News, Perspective

3 Comments | Post Comment

Kirtiman kashyap says:

Takes a different turn from the usual patriarchal trends in our country? Are you out of your freakin mind? Lets assume a man has a physical relationship with a woman and the woman dumps her.she has another affair with some other guy. Now if the first guy has documentary evidence to prove that he had sexual relationship with the woman, he can easily sue the girl for bigamy considering the fact that sex is a valid ground of marriage.. This judgement is nothin short of primitive and obviously suggests that the judge has no idea of what a live in relationship means or for that matter casual sexual encounters, not denyin the fact that justice has been served in this case. However it would have been appreciated had a more sensible ground been made to ensure justice!

Posted on June 28th, 2013

aastha says:

Thats exactly the reason i wrote this in the first place. I would have appriciated had you read the entire thing where it is clearly mentioned that the approach to justice is lousy but the on the right path. One insight into the facts of this case the judgement wouldnt be absurd. the ratio of this judgement was the same as many supreme court court decisions stating that if a man and woman are living as husband and wife, the husband is bound to maintain the woman (and thier children).

Posted on July 3rd, 2013

Govardhan says:

Taking all true evidence into account if the spouse is proved guilty then he/she should be awarded with Talibani punishment such as ” 100 Kode “, at least in case of incidents of fraud to Marriages. If Such stringent law is made in the interest of society it will at least make people think twice before committing a crime. Having another affair/relationship without having a divorce with the first spouse must be treated as a crime and then as i said earlier there should be only one punishment to be given is “100 Kode” and after that as per the law monetary assistance should be awarded in the interest of that spouse by the guilty person.

Posted on August 22nd, 2013