THE SUNDAY STORY The Madras High Court's order treating sexual relationships under some conditions as marriage opens the door to fresh litigation.

The judgement of the Madras High Court in Aysha vs Ozir Hassan does not really lay down any new law in a case where the husband denied the marriage even though he had declared himself as the father of the two children and stated that the petitioner was his wife in the ration card giving rise to presumption of marriage.

The concept of presumption of marriage is invoked to address instances when a spouse denies the marriage. In Mohd Amin and Others vs Vakil Ahmad and Others (AIR 1952 S.C 358) the Supreme Court held that the presumption of a lawful marriage would arise when there was a prolonged and continued cohabitation as husband and wife and where there was no insurmountable obstacle to marriage, such as prohibited relationship between parties, the spouses being not divorced and the like.

This doctrine has been discussed in great detail by the Supreme Court in Chanmuniya vs Virendra Kumar Singh (Judgements Today 2010 (11) 132) where precedents starting from the Privy Council have been referred giving a clear understanding of the development of law since 1929. The apex court held that a broad and expansive interpretation should be given to the term “wife” to include those cases where a man and a woman have been living together for a reasonably long period of time and strict proof of marriage should not be a pre-condition under Section 125 Cr.PC.

While considering the rights of women to receive maintenance in such situations the judgement does not address her economic rights in terms of her contribution towards the relationship in the form of her labour, care giving and material resources but has reinforced patriarchal notions by linking sexual relationship with marriage.

The judgement opines that if there is sexual intimacy then it automatically becomes marriage. It has in a vast sweep generalised all kinds of relationships and intimacies that could give rise to a lot of confusion in trial courts.

The implication of the court’s observations is that if both parties have a casual relationship they would require dissolution of a nonexistent marriage. According to the judgment, “any couple who choose 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.” (sic) These considerations are not listed.

The judgement further observes that either party may approach the family court for declaration of marital status by supplementing documentary proof of evidence in order to prove sexual relationship. Parties do file proceedings seeking such declaratory relief for marital status and in such cases presumption of marriage is raised. But to seek evidence to prove sexual relationship could be counterproductive. By this observation even dating with some physical intimacy and pictures in social media could imply that there was a marriage and would require a decree of divorce if the couple decide to break up. It could also lead to situations where young women who have had a relationship but would want to exit the same can be harassed by the filing of false cases using such documentary evidence.

Consider another observation, “if any couple 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.” It is a growing reality that young people are exploring their right to choice and sexual autonomy before deciding on marriage and to declare that all of them should be treated as married can cause them more harm.

The court further holds that if the conjugal rights for sexual consummation are not fulfilled then such a marriage is deemed to be a failure, void or lapse. It concludes that the “main legal aspect for a valid marriage, namely consummation has happened in the case even before the formalities.” Statutory law holds non-consummation as voidable at the option of the party who wants to come out of it. Judgements have held that refusal may amount to cruelty that is a ground of divorce.

(The author is an advocate at the Madras High Court)

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