A recent judicial conclusion setting live-in relationships on a par with marriage stirs up a controversy. By V. VENKATESAN

MARRIAGE, FOR LEGAL PURPOSES, HAS SO FAR involved a solemn ceremony, or registration, or the fact of the couple cohabiting for a considerable length of time in the absence of proof of a prior marriage. The Madras High Court order delivered by Justice C.S. Karnan in the case of Aysha vs Ozir Hassan on June 16 has sought to introduce the concept of consummation.

In this case, Aysha, the petitioner, had filed a maintenance case in a family court in Coimbatore against her “husband” and claimed a maintenance of Rs.5,000 a month for her two minor children and herself. Aysha claimed that Hassan married her on September 16, 1994, according to Muslim customs. She gave birth to two female children, in December 1996 and December 1998. In 1999, Hassan deserted Aysha and the children.

Hassan denied his marriage to Aysha, saying that the marriage was not recorded in the Nikah book maintained by the mosque concerned according to Muslim customs. He also denied that the children were his.

The family court had concluded, after considering the evidence of both parties, that the children were Hassan’s and as such they were entitled to receive monthly maintenance. The court directed Hassan to pay a monthly maintenance sum of Rs.500 to each of the children, and pay Rs.1,000 towards litigation expenses. It found that the marriage of Aysha with Hassan was not proved through documentary evidence and held that she was not entitled to any maintenance for herself from Hassan.

Justice Karnan of the Madras High Court, in his order, upheld Aysha’s appeal against the family court’s order. He held that a valid marriage does not necessarily mean that all the customary rights are to be followed. In this case, although customary formalities were not followed, Hassan had signed in the hospital records when Aysha was admitted on December 31, 1998, for her second delivery. The second delivery was a caesarean one for which Hassan had given his consent to the doctor in the prescribed form.

Moreover, in the hospital records, namely, “Live Birth Report”, there are separate columns for husband and wife to attest their signatures and therefore Hassan’s signature, so affixed, is sustainable under law. He had, on record, admitted that Aysha was his wife when the second child was born, the court observed.

As Aysha and Hassan lived together as man and wife and had two children, the question of an illegitimate relationship did not arise in this case, Justice Karnan said. He held that if a woman aged 18 or above had a sexual relationship with a man aged 21 or above and became pregnant while in the relationship, she would henceforth be treated as the “wife” and the man would be treated as the “husband”.

Justice Karnan also held that even if the girl did not become pregnant after having such sexual relationship with a man but if there was strong documentary evidence to show the existence of such a relationship, then also the couple involved in such acts would be termed as “wife” and “husband”.

Justice Karnan also said in his order that if both decided to separate owing to difference of opinion after such a sexual relationship, the “husband” could not marry again without getting a decree of divorce from a court of law against the “wife”.

If any couple, subject to their attaining the mandatory age of freedom, indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as husband and wife. On the other hand, if a marriage took place according to rules prescribed by religion and culture remained unconsummated, it was deemed to be a failure, void or lapsed, he held.

In short, Justice Karnan concluded that legal rights applicable to normal wedded couples would also be applicable to couples who had had a sexual relationship.

Justice Karnan thus directed Hassan to pay a monthly maintenance of Rs.500 to Aysha from the date of her petition to the family court, that is, from September 2000, and pay the arrears of maintenance up to May 2013 within three months. The Supreme Court has already held in two cases that a man and a woman who have lived together for an extended period of time should be considered husband and wife for the purposes of Section 125 of the Code of Criminal Procedure (the provision dealing with maintenance of wives, children and parents), even if the woman does not have the legal status of a wife. The husband has to lead evidence to rebut presumption of marriage if it is established that they lived together. In Aysha’s case, Hassan was unable to rebut such presumption; hence, he was liable to pay maintenance to Aysha.

Justice Karnan’s order does not rely on the precedents set by the Supreme Court to hold that Hassan was liable to pay maintenance to his wife. Instead, it brings in a new concept, consummation of marriage as a determining factor for a valid marriage, without any legal reasoning at all. Professor Mrinal Satish, associate professor of law at the National Law University, Delhi, observed: “Decisions of courts which do not provide legal reasoning for their conclusions, even though the conclusions might be correct, and desirable, are dangerous. They lead to arbitrariness and to injustice.

The decision of the Madras High Court is a clear instance of abuse of judicial discretion. It should be criticised for its lack of method, and not lauded merely on the basis that it arrived at a just conclusion. The means are as important as the ends, however justified the ends.”