This is a guest post by Rukmini Sen The Madras High Court on 17^th June 2013 has delivered a judgment where it unambiguously states that ‘the main legal aspect for a valid marriage is consummation’ (pg 13). Consummation of a marriage, in many traditions and statutes of civil or religious law, is the first (or first officially credited) act of sexual intercoursebetween two people, either following their marriage to each other or after a prolonged sexual attraction. Its legal significance arises from theories of marriage as having the purpose of producing legally recognized descendants of the partners, or of providing sanction to their sexual acts together, or both (last accessed 22nd June 2013). In a country like India, where Section 377 of the Indian Penal Code still exists (although decriminalization of consensual sexual acts between two adults in private has been declared by the Delhi High Court in 2008), what constitutes the status of consummation in a gay/lesbian union or when two heterosexual adults live together, when the legal significance of consummation is connected only with giving birth to a ‘legitimate’ child? What about relationships where there are willfully no children, biological, adopted or surrogate? This is one of the many questions that this judgment raises and leaves me more bewildered about my legal identity as a cohabiting partner in a heterosexual relationship.

In 2010, Supreme Court in D.Velusamy vs D.Patchaiammal had stated a `relationship in the nature of marriage’ means:

(a) The couple must hold themselves out to society as being akin to spouses

(b) They must be of legal age to marry

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time

In 2013, the Madras High Court is of the opinion in the concerned judgment,

[…]if a woman aged 18 or above has a sexual relationship with a man aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the ‘wife’ and the man would be treated as the ‘husband’. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such relationship, then also the couple involved in such acts would be termed as “wife” and “husband”(pg 12).

There is a difference that is being constructed here between a woman and a girl, whereas a ‘woman’ may become pregnant, a ‘girl’ may do it purely for pleasure; and yet would require ‘strong documentary evidence’ if for some reason she goes to court. Or if we go by the 2010 judgment, ‘merely spending weekends, or a one night stand’ would not constitute a domestic relationship in the nature of marriage and may not tantamount to strong documentary evidence of sexual relationship as per the 2013 judgment. Further, Madras High Court also stated that under the Indian Constitution, post 21 and 18 years, a bachelor and a spinster acquires the freedom of choice to ‘consummate their sexual craving’ (pg 12). Firstly, there is nothing in the Constitution about consummation ages, the Child Marriage Restraint Act, 1978 made ages of marriage for boys and girls to be 21 and 18. This of course completely brushes aside the ongoing debate about whether 16 or 18 should be the age of consent for girls. The new Criminal Law Amendment Act, 2013 have changed the provision in Section 375 of the Indian Penal Code (which gives a definition of rape) and made 18 to be the age of consent in spite of tremendous protests from various democratic rights groups. Very clearly, the judgment is giving emphasis to the ‘sexual craving’, the act of sex as opposed to sexual desire and of course as if separated from love and companionship.

A close friend sent me an email quoting the NDTV report (last accessed 22^nd June 2013) titled, ‘Pre-Marital Sex is equal to marriage, rules court’ that I should let my parents know that I am ‘officially married’ and not ‘single’ (as they refuse to legitimize my relationship). I am also reminded how one of my blood relatives complained to my father after staying in the same residence with my partner and me for about a week that ‘they live like husband and wife’. I wonder whether our relationship is ‘in the nature of marriage’ or like ‘husband and wife’ as per the judgments quoted above.

What is the ‘documentary evidence’ under the Indian Evidence Act, 1872? Section 3 states,

Document” 1[ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations

A writing is a document: 2 [Words printed lithographed or photographed are documents:

A map or plan is a document:

An inscription on a metal plate or stone is a document:

A caricature is a document.”

Evidence” means and includes– (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.” 

My partner and I while reading this judgment together wondered whether we should go to the nearest police station and make a general diary, and then get it notarized that we are in a consensual sexual relationship, but due to occupational requirements not always sharing the same residence—will that be considered to be a documentary evidence, or does that evidence in cases like these arise only in connection to pregnancy and/or abortion, i.e. creation of a foetus [In the 2013 judgment, because the man had signed the consent form of the caesarean delivery of the second child, there was no doubt legally that the child was ‘legitimate’ and he the husband as per page 12 of the judgment]? Although, according to Flavia Agnes, (last accessed on 24th June 2013) “various documents can be used as evidence. It could be ration cards of the man and woman with the same address, proving that they had been living together, as well as joint bank account statements or documents showing that a man introduced his partner to a bank. Even an affidavit from the neighbour stating that the couple had been living there is accepted as evidence”. I wonder whether these evidences prove the ‘sexual relationship’ between the two, of course it may prove cohabitation.

Or have we projected to society ‘as being akin to spouses for a significant period of time’? How does the society recognize a spouse—marriage symbols? Surname change? Sharing a residence? Having a child together? What is legally recognized to be a significant period of time—two years? Five years or the legally popular seven years? Can we not have newer terms like civil partnership, domestic union, cohabiting partners; single person rather than linking all consensual adult relationship to married, separated, divorced, widow, bachelor or spinster? Interestingly, the 2013 judgment, considers the woman to be a ‘spinster before she gave birth’ and the man a ‘bachelor before developing sexual relationship’. The fact that the women may also have sexual relationship dissociated from child birth is not considered by the court. Does being in and exploring love, respecting each other’s ideology, being able to read Tagore and Marx together, arguing over chocolate mousse or phirni for dessert, not constitute an adult consensual sexual relationship? These judgments while supporting the [second/other/legally not married] woman in her cause for maintenance within a relationship in the nature of marriage reinforce heterosexual roles and expectations of marriage in India. In this context, the clarification provided by Justice C S Karnan on 20^th June 2013, is relevant “If a bachelor aged 21 years or above and a spinster aged 18 years or above had premarital sex with the intention to marry and subsequent to this the man deserts the woman, the victim woman can approach a civil forum for remedy after producing necessary substantial evidence to grant her social status as wife. This remedy is not only for the purpose of giving relief to the victim woman but also to maintain the cultural integrity of India“. (last accessed 24th June 2013)  Questions may arise as to what really constitutes cultural integrity, was it violated because of sexual relationship outside the recognized marriage, and therefore by granting the status of wife, that wrong is corrected? One does understand that in a country like India, several women are deserted by men after making them believe that there will be a marriage, and these women need legal remedy. This judgment provides that, but in the process does it also not reify the institution of marriage? In a social, cultural environment where in 2012, the India International Jewellery Week launched The Great Indian Wedding Book, covering couture, food, jewellery, entertainment in Indian (read Brahmanical Hindu) wedding, or where popular television commercials [ICICI with the ‘sindoor’ metaphor, Chevrolet car, Idea mobile as illustrations], or Hindi films [Dilwale Dulhaniya Le Jayenge, Baghban, Kabhi Khushi Kabhi Gham, We Are Family, as examples] also inevitably portray a husband, wife and child/children while depicting a family, can we not interpret these judgments as an extension of that ideology?  

Finally, the other issue which makes this judgment significant is maintenance, notwithstanding the fact that the amount was decided by the court to be Rs 500 a month each for the woman and the two children. There was no discussion in the judgment about whether the salary of the husband was Rs 25,000 per month as claimed by his ‘wife’, or Rs 1500 per month as per his claim. One is only reminded of Delhi CM Sheila Dixit’s recent comment (last accessed 22^nd June 2013) that Rs 600 is enough to feed a family of five in Delhi. Keeping the amount aside from further discussion, the court through its arguments had to prove the legitimacy of the children and the wife in order for them to get maintenance. Indian courts till recently had provided maintenance only to legally married and divorced women. There is definitely a shift from that position, yet marriage remains the reference point to determine maintenance. Thus, the Madras High Court reinforces the way in which Section 112 of the Indian Evidence Act, 1872 understands legitimacy of the child. [1] Proving legitimacy of the child remains an extremely hetero-patriarchal requirement of the law, which can call children illegitimate, bastards, where paternity is questionable. In a case like this, the woman needs the court to prove both her wifehood as well as her husband’s fatherhood through the children, in order to get that pittance of maintenance and that too after a court battle since 2006 (that is when the Coimbatore Family Court judgment was delivered, which may have also taken years to be delivered). One could keep in mind in this context, the 2012 Delhi High Court judgment which made public the DNA test reports of the politician N D Tiwari, establishing that he was the biological father of his son, the latter had gone to court in 2007 filing a paternity suit (last accessed 22^nd June 2013). 

The 185^th Law Commission Report (2003) has recommended changes to Section 112[2] partially keeping in mind some technological advances relating to parenthood. The court by emphasizing that the man made a signature as the head of the family in the application for the new family card (pg 9) signed in the column of husband in the ‘Live Birth Report’ of the hospital (pg 10), and finally gave his consent for caesarean operation for the birth of the second child (pg 11); proved that the wife and the children were legally his. Interestingly, nowhere does the court talk about the legitimacy of his identity, of course because the women and children are dependent on the man in a marital relationship or even where the woman is ‘elevated’ to become the wife.

Flavia Agnes considers this judgment to be positive. With respect to providing a legal remedy for the woman, resolving the dispute and ensuring maintenance, it definitely is. However, there is more to this judgment, than maintenance, just like the 2010 one and that is where the focus of this humble analysis is. Judgments like these make comments on the moral fabric of the society, impacting perceptions attached to social relationships; there lies the more. True, the Protection of Women from Domestic Violence Act, 2006 provides scope for handling disputes in live-in relationship, but are relationships only about violence, dispute-settlement, maintenance, and death; i.e. wrongs, what about the question of rights, autonomy, love, care and freedom in a relationship? Judgments like these take away the possibilities of plural forms of partnerships not wanting to be identified or categorized as ‘wives’ or ‘marriage like’ or ‘friends’ (last accessed 22nd June 2013).

Rukmini Sen is Assistant Professor, Ambedkar University Delhi

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