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Relax. No One Said Having Pre-Marital Sex Means You’re Now Married

While last month’s Madras High Court judgment on a maintenance dispute (and ensuing debates on pre-marital sex and marriage) had social media in a tizzy, all I could hear in my head was the refrain, “Let’s talk about sex baby”.

In June, the Madras High Court discussed its views on how couples in a sexual relationship may choose to be considered spouses, whether or not they were ceremoniously married. From everything that I read on social media, I got the impression that many believed the high court had equated pre-marital sex with marriage.

They hadn’t. Or had they?

It’s been a month and I’m still confused about what the Court was trying to say.  One ray of clarity I got was that sexual consummation is supposedly the key element to a valid marriage. But does the judgment say that everyone who has sex is therefore married?

A cursory reading of the judgment might lead you to believe that the Court was really taking a stab at prurience – scaring couples, young and old, into embracing marriage now that they had embraced each other. But the judgment had been delivered for a very specific purpose: to provide partners in relationships (other than marriage) the opportunity to seek legal remedies in the event of something going wrong.

In their social media angst, most people ignored the context in which the judgment had been delivered – a case concerning one woman’s plea for maintenance from the man who had fathered her child and had unceremoniously dumped her, family and all. The issue of contention was that man and the woman weren’t married. Or, in legalese, they ‘could not provide substantial proof of being married’.

There were tiny things, like how the man had, in his application for a ‘family card’, said that he was the head of the family; or how the man had signed the birth record of their second child in the column designated for parents.

And now they were separated. Because the woman’s income was nowhere close to what was required to raise her children, she needed to ask the man for maintenance or support. In turn, the man said he was not married to the woman, and in effect, he owed her (and the kids) nothing.

What questions does such a circumstance raise?

If the woman was telling the truth—that she was indeed ‘married’ to the man, and he had in fact fathered her second child—wouldn’t most of us agree that he had an obligation to help financially? Here’s the corollary: would our view change if we found out she wasn’t technically ‘married’ to the man?

This was the conundrum before the Madras High Court. Which is why the judges might have tried to widen the scope of legal remedies by redefining families and relationships in a more inclusive way.

If that’s what the Madras High Court judgment was trying to achieve, would we consider it a progressive judgment after all?

Now, even if we’re willing to give the court the benefit of doubt and accept its good intentions, there are gaping holes in the reasoning and manner in which the Court had chosen to address issues relating to pre-marital sex.

For one thing, the tone. The judgment actually sounds admonishing: “There will be consequences!” Scary.

For another, the judgment does not clarify its stance on pre-marital sex and its utility to couples by failing to explain what it means by providing documentary evidence of engaging in sexual relations – what does that mean, photos, emails, texts, hearsay…?

The judgment also remains surprisingly quiet about married persons involved in extra-marital affairs or persons regularly engaging in sexual relations with multiple partners. In other words, did the judgment really just presume that equating premarital sex with marriage and commitment is going to help everyone who has sex with someone other that their spouse?

In the days following the confusion over the judgment, Justice Karnan who had delivered the judgment allegedly tried to justify the court’s decision stating that it was in keeping with preserving the country’s cultural integrity. Tell that to the innumerable hard working, cultured people of the country, who live with their partners and are in no hurry to get married. How does engaging in sex equal marriage? And if one were to buy that argument, is there really nothing left to the social sanction theory behind the institution of marriage, and is everyone willing to accept that?

Although the Madras High Court judgment might have tried to create a more inclusive definition of relationships, precedents and prior legislations (like the Protection of Women from Domestic Violence Act, 2005) have acknowledged live-in relationships and the rights to personal security and maintenance for children, born out of such relationships. So, was this judgment really necessary?

The Madras High Court may have ignited some excitement and the immediate swap of congratulatory messages among couples, existing and extinct, but the judgment, like any other, needs to be understood in the right context.

Also, the judgment goes to show you that Indian laws still have a long way to go before they can live up to the famous Virginia Slims commercial. If I may paraphrase, “You’ve (yet to) come a long way, baby!”