Confusing ties

A judgment of the Madras high court on the rights of a woman in a relationship of cohabitation with a man has created a controversy over the definition of marriage.

The judgment per se is fair and just and would only be welcomed. But the observations of the single judge, Justice CS Karnan, on the implications of a physical relationship between adults were unnecessary and would well be termed retrograde. After the comments gave rise to some debate, the judge himself clarified them but it has not answered all the questions raised by the observations. It is highly unusual for judges to issue a clarification of their judgments. But Justice Karnan perhaps thought the import of his judgment had not been correctly understood.

The operational part of the judgment allowed maintenance for a woman by a man who had lived with her for a long time and had two children by her. This was in consonance with the norms of natural justice. The Supreme Court also has considered live-in relationships as acceptable and imposing financial and other responsibilities on the partners. But the judge went further and said that a physical  relationship out of sexual cravings between an adult man and woman would be considered valid marriage. Such a couple, even if they had only a passing relationship, would be bound by the legal rights of marriage and would even have to seek a divorce if one of them splits and plans to marry again. This is a strange proposition and it seeks to equate sex with marriage. It is not supported by law and goes against the rights of individuals by curbing sexual autonomy. Marriage is not all about a physical relationship and a sexual relationship cannot be considered as enough to bind a couple into it. Going by the court’s view, a premarital or casual relationship would be termed marriage and this could lead to harassment and other problems.

The judge’s clarification also has not helped to clarify the issue. He says the judgment would give relief to women who are victims of cheating and desertion by enabling them to seek remedy from civil forums. This may be true. But he also says it would also ‘protect Indian culture’ and ‘maintain the cultural integrity of India.’ This should not be a consideration in a judicial view of marriage or sex. It is a personal view and is best kept away from court judgments.

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