Judge’s Remarks on Premarital Sex Raise Questions in India

Danish Siddiqui/Reuters A couple at a sea front off the coast of Arabian Sea in Mumbai, Maharashtra, on Friday.

On Monday, the Madras High Court weighed in on a spousal support case and inadvertently provoked a debate over what exactly defines a relationship between a man and a woman.

The court had heard an appeal from a woman who was seeking financial support from the father of her two children and live-in partner of five years. A lower court had previously ordered the man to pay child support but ruled that because the woman was not his legal wife, he did not ned to pay her anything.

In overturning the lower court’s ruling, Madras High Court Judge C.S. Karnan revealed the reason he ordered the man to pay spousal support, saying, “If any couple chooses 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.”

Social media in India exploded with comments on the ruling, some humorous (“new euphemism for premarital sex: court marriage,” said one Twitter post), others expressing bewilderment at what was seen as an attempt to elevate the importance of sexual relations in deciding the legal status of a relationship.

Yet activists and experts caution against a narrow reading of the Madras High Court’s judgment, which they say seeks to establish rights and responsibilities in relationships that may not be recognized by law.

“The wording in the judgment seems odd, but it’s a way of ! addressing the larger issue of rights of persons over one another when they are in such unions,” said Urvashi Butalia, a feminist writer and founder of Zubaan, a nonprofit publishing house.

“I think that the statement that couples who have sexual relations are to be considered married is a bit absurd,” she said. “It brings in a morality that should not be there.”

An interpretation of marriage that gives primacy to sexual relations not only has social implications but could open the doors to legal battles. In a country where the standards of social acceptability are rapidly shifting, questions about the legal status of consensual sexual relationships have no easy answers.

However, even though the Madras High Court judge’s comments will set a precedent that will be considered in future judgments, his ruling does not mean that anyone who engages in premarital sex will be automatically considered married.

“I think the wording of the media reports around the judgment led to he furor because it seemed that it broadly claimed that all premarital sex among consenting adults could be treated as marriage,” said Meenakshi Ganguly, South Asia director of Human Rights Watch. “In fact, India does not have any law governing de facto unions that are not recognized as marriage.”

Three years ago, the Supreme Court of India clarified that premarital sex was not a crime in the eyes of law when it squashed criminal cases filed against a South Indian actress for her remarks about premarital sex.

Attitudes toward premarital sex have been changing slowly among young people. Findings from an International Institute for Population Sciences study in 2009 showed that youths both in urban and rural areas have become more open to engaging in sexual relations before marriage. A more recent survey by the India Today group and Nielsen noted that “despite the strict supervision of young women’s sexuality, relationships are formed, with at least a percentage of them being sexual.”

But having sex before marriage is still widely condemned in India. Last year, a Delhi High Court judge, as he imposed a jail sentence on a woman convicted of killing her live-in boyfriend, described such relations as a “fad” and an “infamous Western cultural product.”

“Despite all the developments granting a level of legal legitimacy to live-in relationship, it is largely perceived to be an immoral relation in our society,” said the judge, Surinder S. Rathi.

The only law that covers domestic partnerships is the Protection of Women from Domestic Violence Act, which defines them as “a relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage.”

In the case before the Madras High Court, “the petitioner was seeking relief,” Ms. Ganguly said. “It is a reasonably good judgment because the judge attempted to protect the rights of the woman and the child within a limited framework.”

Though the laws don’t automatically determine a relationship through the existence of sexual relations, they do see the lack of such relations as proof that a marriage is no longer valid.

For example, not consummating a marriage can be grounds for divorce. And a Bombay High court judge ruled earlier this year that a woman who had been separated from her husband for a long period could not file a petition against her husband under the Domestic Violence Act, as there was no domestic relationship.

Though most of the judgments in the recent years have tried to protect the rights of women, T.K.R. Sudha, a lawyer at the Madras High Court said, “We need to make amendments to the family and marriage laws because the many different judgments are creating confusion in the minds of people.”