One big issue, among many, is the potential for abuse of even good judgements.

Much like those concerned with relationships, I too have been actively following the aftermath of the recent Madras High Court judgement pertaining to the rights and responsibilities of cohabiters.

Unfortunately, the focus of the aftermath has been almost entirely on the peripheral comments made in the judgement regarding pre-marital sex, with only a small minority of opinions focussing on the essence of the judgement which ensures that committed, cohabiting relationships would be deemed as being equivalent to marriage and therefore both partners in such a relationship would, in the eyes of the law, be accorded the legal status of “wife” and “husband”, even if the relationship was not formally solemnised in a place of worship or in the office of the registrar of marriages.

As a result such couples would be governed by existing divorce laws, if the relationship was terminated.

Unfortunately, most commentators on the subject have chosen to address the issue of pre-marital sex being used as a parameter for determining the status of the relationship and have implied, bizarrely if you ask me, that any young adult above the legal age of consent would have to contemplate divorce from a person they’ve had sex with before getting married to or engaging in a sexual relationship with someone else.

This implication is also extended to those who are involved in sexual extra-marital relationships.

I, for one, certainly don’t believe any of this was implicit in the judgement, although the vocabulary could perhaps have been more rigorously considered in order to be less open to multiple interpretations.

However, this piece is not about this particular judgement. I am merely taking the opportunity to explore two issues that emanate from it — the relationship between law and marriage and the potential for abuse of even good judgements particularly those related to marriage.

One would imagine that marriage is essentially a very personal relationship between two people, who privately make a commitment to spend as much of their lives together as they possibly can in companionable comfort, and when they feel they can’t bear each other any longer, amicably go their respective ways, without troubling each other or their respective families and most certainly not the criminal or civil justice system. But obviously marriage isn’t going to be let off the hook so easily.

Society has always had a significant stake in ensuring that marriage, sex and sexuality be tightly, even rigidly controlled, owing, perhaps, to the historical prevalence of polygamy in a patriarchal social system that rendered women and children vulnerable. Initially marriage was thought of as a contractual obligation (the first such contracts are considered to have evolved from Mesopotamia over 4000 years ago) that ensured that the man took the woman and their children as his “protectorate”.

Over the millennia since, marriage became a mechanism to expand alliances between families and create societies. From around the 12 century onwards, with the growing influence of organised religion, marriage came to be considered a sacrament.

However, since sacraments were not necessarily honoured as they were expected to, the State got involved over the last few centuries, and enacted laws pertaining to marriage, defining and protecting the rights and responsibilities of both partners in the marital union. In most parts of the world, including ours, marriage has remained a sacrament, although in recent times, certainly in the Western world, it’s beginning to be seen less as one, and more as a covenanted partnership, thereby increasing the need for more legislative support to ensure the protection of the protagonists.

Even though marriage, or committed cohabitation of any form, is the most intimate relationship that human beings can engage in, its essential vulnerability lies in the fact that it’s not indestructibly bonded by ties of blood.

And, since economic parameters such as inheritance are related to lineage and familial relationships, it certainly does need legislative protection for this and two other key reasons. In a patriarchal social system, women are certainly more vulnerable owing to their state of dependence, and their rights do need to be protected and adequate provisions have to be made for them in situations where the relationship breaks down irretrievably.

Also, children, since they are conceived of two parents, do require the opportunity to have both their parents, if both are alive, participating in their lives, and should not be permitted to suffer for no fault of theirs. Sadly, in recent times, marriage and divorce laws, even though enacted with noble intentions, do tend to be abused more often than one would like to see. I have written in the past about the abuse of the laws pertaining to domestic violence and dowry-related cruelty. Similarly, I do see the potential for the judgement that stimulated this discussion, being misquoted as a precedent for those seeking redressal from courts of law for being cheated of a promise of marriage. Obviously, no law can be completely abuse-proof. And no law can comprehensively incorporate the entire panoply of social and moral norms in a pluralistic society like ours.

However, if the law conceived of marriage as an extra-special contractual relationship and not as a moral sacrament and framed morality-neutral legislation along these lines, then perhaps the imposition of marital law may excite far less agitation than that of martial law.

E-mail: vijay@vijaynagaswami.com