Author: Nivedita Saxena, Research Associate
Facts of the case ((Crl. R.C. No. 674 of 2007Decided on 17th June 2013, by Single Judge Bench of C.S. Karnan, J. available at http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=42120 last accessed on June 27, 2013 at 9: 12 PM also available at http://www.scribd.com/doc/148729049/Madras-High-Court-judgment-on-maintenance-sexual-relations-and-marriage last accessed on June 27, 2013 at 9: 17 PM)).
The petitioner, name Aysha, had filed a maintenance case against her husband, named Ozir Hassan, and claimed a monthly compensation for her two minor children and herself. The wife claims that the respondent had married her as per Muslim customs. Immediately after the marriage both had led their marital life at Coimbatore, Out of the wedlock, she gave birth to two female children on 23.12.1996 and 01.01.1999 respectively. In the year 1999, the respondent left the house and deserted the first petitioner and the two children. Thereafter mediation was conducted by the Panchayat for a reunion, which was in vain. The respondent is manufacturing and selling footwear in the name and style of “Ozir Hassinin Nazma” at Coimbatore and earning Rs.25000/- per month. Hence, the first petitioner against the respondent has filed the maintenance case. The lower court had ordered the man to pay a monthly maintenance amount of Rs.500 to the two children and Rs.1000 as litigation expenses. The lower court stated that the woman/petitioner was not entitled to maintenance, as her wedding with the respondent was not proved by documentary evidence, .i.e. being registered in the Nikha book as per the Muslim custom. Against this order passed by the family court judge, Coimbatore, the petitioner/woman had filed for revision. The counsel for the petitioner submitted that the lower court failed to take note of the documents and evidence submitted by the petitioner. Documentary evidences were submitted by the petitioner, which included photos, letters, hospital documents, and family card application. On the family card application, the respondent had accepted to being the head of the family. These documents were not challenged by the respondent and show that the petitioner was indeed the ‘wife’ of the respondent.
The Madras HC, among many other observations, noted the following:
- A valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised.
- The petitioner and respondent are not debarred or disqualified from solemnisation of their marriage.
- Without legal encumbrances or third party interference or without affecting third party’s rights, both the petitioner and the respondent led their marital life under the same shelter and begot two children.
The court observed that in the case at hand, the customary formalities have not been followed, but the respondent had signed in the hospital records authorising the Caesarean for the delivery of their second child. In addition, the respondent had signed in the “live birth report” of the hospital, where he had signed in under the column of husband. The court placed the legal aspect of solemnisation of marriage above the customary rites. The court said that a valid marriage does not necessarily requires all the performance of customary rights pertaining to married couple and since they have lived together as spouse and begot two children therefore petitioner should be treated as ‘wife’ and Respondent as ‘husband’. The woman’s claim for maintenance money was not lost only because of lack of documentary evidence for the solemnisation of marriage.
Therefore, the court modified the decree passed by the Family court at Coimbatore ordering the husband to pay a monthly maintenance of Rs 500 to the wife with effect from September 2000 and also the arrears of maintenance unto May 2013, within a period of three months.
Analysis of the decision
Supreme Court of India in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha ((1SCC 141; On 7th October 2010, Available at http://indiankanoon.org/doc/1949767/ last accessed on June 27, 2013 at 9: 37 PM))was faced with a similar issue. The two judge bench was of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under the section. However, being a two judge bench, the court was restricted by the contrary judgments by larger benches, and thus requested that the case be referred to a larger bench ((The matter is pending consideration before the apex Court.)).
On a subsequent date, Supreme Court in the case of D.Velusamy v. D.Patchaiammal ((10 SCC 469; On 21st October 2010, Available on http://indiankanoon.org/doc/1521881/ last accessed on June 27, 2013 at 9: 44 PM also see Vimala (K.) v. Veeraswamy (K.), [(1991) 2 S.C.C. 375] &Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 S.C.C. 675])), observed that not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the following conditions must be satisfied, and proved by evidence:
(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.
Thus, this decision is in tune with the observations of the Supreme Court on the matter, and is sound in view of the relevant facts.
It is true that Madras HC in its decision has made statements such as “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 after such a sexual relationship, if both decide to separate due to difference of opinion, the ‘husband’ cannot marry without getting a decree of divorce from the court of law against the ‘wife’…” and “…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…”. Nevertheless, statements like these are observations made by the court just by the way; they do not form the rationale of the decision, and is called the Obiter Dicta of the decision, which has no precedential or pervasive value as such. Implying that inappropriate statements or comments made by the judge as obiter do not make the whole decision erroneous
Addressing the legality of pre-marital sex, the Supreme Court in the very popular case of S.Khushboo v. Kanniammar (( 2 SCC (Cri) 1299; On 28th April 2010, Available at http://indiankanoon.org/doc/1327342/ last accessed on June 27, 2013 at 9:53 PM))has observed that no statutory offence takes place when adults willingly engage in sexual relations outside the marital setting with the exceptions of ‘adultery’. In view of the Supreme Court’s decision on the issue, ambiguous statements like those made by a High Court in its order are not relevant, and do not set a precedent. So, any couple who has pre-marital sex, will not henceforth be considered married.
In fact, the issue of implications of pre-marital sex or live-in relationship did not face the Madras HC court. The court has protected the rights of the petitioner who was rendered in a position similar to a woman in a live in relationship due to lack of documentary evidence as proof of solemnisation of marriage and thus strengthened the rights of woman. Simply put, the court said that the marriage existed in fact even if not on paper. It must be kept in mind that the basis of the Madras High court’s decision is the factual matrix presented before the court in the current matter, and must be read contextually; otherwise the meaning may get flawed.
Even though the decision by the court is in tune and in accordance with the existing law and legal opinion of the courts, but the court has failed to provide any legal reasoning for the same. Madras High Court while coming to this decision has not referred to any statutory provisions or precedents which would have been relevant (including those mentioned above) i.e. the judgment is per incuriam. The sole reason as is evident from the words of the judgment is that the petitioner and respondent have had a sexual relationship, which makes them validly married, implying that consummation is the sole basis of a valid marriage. The statements made in the judgment are contradictory to the existing law and judicial precedents in the country. Decisions that lack in legal reasoning are open to misinterpretation and thus cause uncertainty on the issue involved. Similar is the situation with the decision delivered by the Madras HC, which has faced huge criticism from the media especially online social media leading to many erroneous interpretations being circulated in public.