Courtly Affairs Madras Style

Relax, getting laid and getting married isn’t the same. We break down the Madras High Court judgment for you.

ByArpita Seth
Courtly Affairs Madras Style
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So what’s this social media chatter about the Madras High Court putting a spanner in the works for anyone wanting to make the beast with two backs out of wedlock? Nothing of the sort happened. This was all a reaction to a Madras High Court judgment which said in a given context premarital sex establishes marriage. But since little knowledge is a dangerous thing, everyone before getting all worked up about having to wear chastity belts, should have read the full text of the judgment.

How did they know of the judgment? Well, any legal reporter who would have been in Madras High Court on the day of the judgment would have heard about the hearing. The judgment itself is from the Madurai Bench of the Madras High Court and it can take almost a month for it to be uploaded on the High Court’s website. Only after this period can a copy be obtained by contacting the Public Information Officer at the Madras High Court. Certified copies of the judgment can only be obtained from the High Court’s Information Centre, litigants or litigant’s lawyers. Any other source is uncertified. The law is silent on that. The Supreme Court Rules 1966 and various High Court Rules, only state the procedure of how the Court collects the information.

So is it legal to get a copy of the judgment from any other source? Your guess is as good as Kapil Sibal’s. No one seems very clear about this rule. (Please feel free to insert an appropriate Kapil Sibal poem.)

Getting back to the belt of chastity, are you saying we don’t have to indulge in abstinence till we’re married then? First of all, everyone seems to be missing the point that the judgment wasn’t a comment on sexual relations between unmarried men and women. It was a correction of an earlier judgment from the Coimbatore Family Court in April 2006 on maintenance to a petitioner. You can read the entire judgment (don’t ask how they got it) on LegallyIndia’s website.

Maintenance? What maintenance? A woman named Aysha married Ozir Hassan in 1994 and led a “marital life” in Coimbatore. They had two daughters between 1996 and 1999, after which Ozir Hassan left Aysha. She went to the Coimbatore Family Court to get maintenance money from Ozir Hassan for herself and her children. In April 2006, the Coimbatore Family Court awarded a monthly amount of Rs 500 to each of the girls but did a googly on Aysha. The Family Court reasoned that since there was no documentary proof of Aysha having married Hassan, she could not get money for herself.

Documentary proof? Like what? A sex tape? Don’t be ridiculous. You sound like those idiot journalists and tweeters who’ve been writing nonsense about this judgment. The “documentary proof” in the present case is the record of the marriage having taken place. Aysha approached the Madras High Court with two documents that were ignored by the Coimbatore Family Court. One was a hospital record signed by Hassan authorising a Caesarean operation for the delivery of their second child. Another hospital record was a Live Birth Report that had separate columns for the husband and wife to attest their signatures. Hassan had signed as “husband” in the Live Birth Report. Consequently, the Madras High Court concluded in favor of Aysha by awarding her monthly maintenance.

Simply put, it is important to understand that the basis of the decision is specific to the facts and circumstances of the Aysha-Hassan case and has to be read in context. If you take a part of the judgment and read phrases from it out of context, it will obviously seem “regressive”, “archaic” and “Victorian”.

How come the Madras High Court gave a judgment which was contrary to the Coimbatore one? The Madras High Court gave the following reasons for its judgment. In legal jargon it is called the Ratio Decidendi or rationale of the case.

  • “A valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised.” Customary formalities are not the only qualifier of a relationship as marriage. The fact that Hassan had signed a hospital record authorising a Caesarean operation for the delivery of their second child is enough valid proof of a marriage. Since Hassan had attested his signature as “husband” in the Live Birth Report of the hospital, he had committed himself as a parent to the two girls. Consequently, the argument of the children being illegitimate does not hold ground.
  • For solemnising marriage, legal aspects are to be placed on a higher scale and the customary aspects do not command such a scale.”  Hassan had “openly” and “officially” admitted in the above two documents that Aysha was his “wife”.
  • “Without legal encumbrance or third party interference or without affecting third party’s rights, both the petitioner and the respondent lived together as spouses and begot two children. Therefore illegitimate relationship does not arise in this case.”  Which means that customary rights and obligations of getting married are not mandatory.

So what’s everyone been quoting? That’s what we call the Obiter Dicta of the judgment. These are opinions or viewpoints which are made in passing by the Court. They do not form the basis of the decision and have the possibility of being woolly and unsettled. The fact that the obiter dicta holds no precedential or authoritative value serves as a saving grace for the judiciary’s love of verbosity.

The judgment doesn’t say that unmarried men and women indulging in sex before marriage, are married in the eyes of god? Right you are. It’s the Obiter (which has no binding power) which said that “The Court is of the view that if a woman aged 18 or above has a sexual relationship with a man 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 termed as ‘wife’ and ‘husband’.”

This Court is of the further view that even after such a sexual relationship, if both decide to separate due to difference of opinion, the ‘husband’ cannot marry without getting a decree of divorce from the Court of law against his ‘wife’. He could not marry a second time without getting such a decree as it had been established that the sexual relationship had existed between them and the consummation had taken place.

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. On the other hand in some cases, both bachelors and spinsters, who adhering to all formalities of their respective religion and culture with marriage solemnized, find it that their conjugal rights for sexual consummation had not been fulfilled, then such a marriage is deemed to be a failure, void or lapse. So in total what is expected after adhering to norms and facilities is the sexual consummation by the couple, which has occurred in the case at hand

Lesson being, that one must read the Obiter in context taking the facts and circumstances of the case at hand. Look at the reasoning/rationale/ratio decidendi of the decision; ignore the rest.

How does this make the judgment “progressive”? Well, look at the context. The Madras High Court granted Aysha maintenance money because she had two documents in which Hassan openly claimed himself to be her “husband” and the father of her children. The fact that there was no documentary proof of marriage did not nullify her claim to maintenance money. This widens the scope of the right to claim maintenance beyond the restrictive terminology of “marriage”, “husband” and “wife”. This keeps in mind the increase in the number of couples not getting married nowadays. Yet, don’t forget, since obiters do not hold any authoritative value, this won’t set a precedent. As in you cannot approach a Court of law based on this aspect of the judgment. Decisions of the Supreme Court take precedence over those of the High Court, so you have to first look at what the Supreme Court says.

In 2010, a bench comprising former Justice Markandey Katju and Justice T.S Thakur in D Velusamy v. D. Patchaiammal on 21 October 2010 discussed what came within the hazy confines of a “relationship in the nature of marriage”:

  • The couple must hold themselves out to society as being akin to spouses.
  • They must be of legal age to marry.
  • They must be otherwise qualified to enter into a legal marriage, including being unmarried.
  • They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The 2010 Supreme Court judgment also stated the following – “merely spending weekends together or a one-night stand would not make it a ‘domestic relationship”.

A Supreme Court bench of Justice G.S Singhvi and Justice A.K Ganguly in Chanmuniya vs Virendra Kumar Singh Kushwaha & on 7 October, 2010, asked the Chief Justice to consider the following questions-

  • Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?
  • Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?
  • Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

Status: Undecided!

Then why on earth did the Madras HC judgment create such a furore in the media? Could be the media was just inebriated by the exuberance of the verbosity of the Obiter. The Hindu was the first to comment on the judgment. Well, less of a comment and more of a stenographer’s job.  Next was a more spot-on article by Firstpost declaring the Madras judgment a progressive one. The rest just repeated the same misinterpretations – whether it was Hindustan Times or DNA. NDTV 24×7 in The Buck Stops Here and The Social Network focused their discourse on “vocabulary” and “judicial over-speak”. Surprisingly, The Hindu’s Op-ed titled “Law, Sex and Dicta” failed to understand the judgment in light of the facts and circumstances of the case. The media translated Aysha’s victory and Justice Karnan’s verbosity into a return to the Dark Ages.

Basically, I don’t have seven wives and don’t need to liquidate my meager investments to support them?  Seven? You wish.


14. Mohit Singh

15. Vishnu Warrier

16. Sushant Singh

17. Vidhi Sheth


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