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HindustanTimes Wed,16 Apr 2014

Pre-marital sex equals marriage, says Madras HC

HT Correspondents, Hindustan Times  Chennai/New Delhi, June 18, 2013
First Published: 12:13 IST(18/6/2013) | Last Updated: 00:35 IST(19/6/2013)

An unmarried adult couple will be considered married and can be termed husband and wife if they have sex, the Madras high court has said in a judgment with far-reaching consequences, especially for those in live-in relationships.

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Such a couple could not separate or "marry" a second time without a decree of divorce if it was proved that they shared a sexual relationship, said the court, whose order has been described as regressive and confused.

The judgment has created a furore online, with social media buzzing with angry messages. (click here to read the operative part of the verdict)

"If any couple, subject to their attaining the mandatory age of freedom,...indulges in sexual gratification, then that would be considered as valid marriage and they would be termed as 'husband and wife', as a result of their choice of freedom," justice CS Karnan said while deciding a maintenance claim in favour of a woman who had two children with a man she was not married to.

The court said if the woman gets pregnant, she would be treated as the 'wife' and the man as the 'husband'.

"The judgment seems to be based on the established rule regarding presumption of marriage but the court has stretched it too far. There was no need for equating sexual relationship with marriage, which undermines the sanctity of marriage," former law commission member Tahir Mahmood said.

"Putting so much emphasis on sex is rather obnoxious. To say that without divorce the parties cannot separate is legally untenable."

The court said marriage formalities of tying a mangalsutra and exchanging rings were only for the satisfaction of society, adding legal aspects should get precedence over customs.

The court reversed a Coimbatore family court's finding that the duo could not be considered a couple as there was no documentary proof of the wedding. The family court had asked the man to pay R500 maintenance a month to his two children but not to the woman.

In signing the birth certificate of his second child and giving consent to a caesarean section, the man had officially admitted that the woman was his wife, the HC said, ordering the man to pay the woman a maintenance of Rs. 500 a month since September 2000, when she filed petition.

The Supreme Court has all along held that if a man and a woman live together for a long period as husband and wife, there is a presumption of valid marriage between them and children born of such relationship have inheritance rights.

But the HC verdict appears to have confused sex with marriage as it describes consummation or sexual interaction as "the main legal aspect for a valid marriage".

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