Pre-marital Sex or Non-marital Sex


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Most Media probably tried creating a sensational debate yesterday with its headline “Couples who have premarital sex to be considered ‘married,’ says HC”  –  unfortunately it has to be pointed out that “Do not write between lines and let not the interpretation of an Individual be projected as High Court Judgement”.

According to the report:

The court further said if necessary either party to a relationship could approach a Family Court for a declaration of marital status by supplying documentary proof for a sexual relationship. Once such a declaration was obtained, a woman could establish herself as the man’s wife in government records. “Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established.”

The court also said if after having a sexual relationship, the couple decided to separate due to difference of opinion, the ‘husband’ could not marry without getting a decree of divorce from the ‘wife’.

“..if any couple 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,” Justice C S Karnan said in his order.

Before I begin with my criticism, I consider that this Judgement is a historic one and is in no way a cultural or a moral disaster. While we read the entire ruling, it is very clear that Justice C.S. Karnan has intended to protect the rights of women and child who are abandoned after sexual exploitation either by pointing out to consensual sex or  by taking the excuse of not being legally / customarily married / saying that it is an illegitimate child.

“Justice Karnan said he was of the view that a valid marriage did not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised. In the present case, the woman and her husband had no encumbrance or other disqualification for solemnising their wedding as per their customs. For solemnising a wedding, legal aspects should be placed on a higher scale than the customary aspects. In this case, the man had signed in the ‘live birth report’ of his second child and given his consent for a Caesarean section for its birth. As such, he had officially admitted that she was his wife.”

“Without legal encumbrance or third party interference or without affecting third party rights, both the petitioner and the respondent lived together as spouses and begot two children.” Therefore, the question of an illegitimate relationship did not arise. Wedding solemnisation was only a customary right, but not a mandatory one. Hence, the judge said, he was treating the couple as spouses in normal life

First of all, to me in this context, the word ‘Pre-marital’ sex sounds absurd, “non-marital” sex may be a better term because this ruling discusses about ‘ruling out’ the customary aspects of marriage that is followed for the sake of society or under the religious belief system. In-fact I recommend that the word “non-marital” sex comes into floating rather than this word ‘Pre-marital Sex”. (it tries to imply that sex is taboo).

 Also I notice that many other posts discusses based on tweets & posts of the general public which comments such as “if all sexual relationships amounts to marriage, then how many wives do I have” etc., This is a reflection of a ‘COMMON MAAAANNNNNNN’ trying to boast of his ‘sexual capability’. Nowhere has the justice let out words that acknowledges all sexual relationships as marriage, he has very clearly evaluated the period of living, resultant actions, engagement and concluded the judgement on the grounds of those evidences.

‘One of the intelligent post questions the fate of commercial sex being labeled as marriage’, these kind of interpretation is nothing more than male chauvinist stupidity.  But I would like to say that if it is the case of a commercial sex-worker who conceived a child out of a living / sex with ‘one person’ and there has been a lack of protective measures by the Man in-spite of women insisting on protection, then that has to be considered as a child born out of “non-marital sex” and the women should be given right to seek maintenance for her pregnancy, child birth and maintenance of that child.

Now, coming back to the HC judgement, justice has done the necessary evaluation to arrive at the conclusion of acknowledging a ‘live-in’ relationship as marriage and whereby boldly recommended to rule out the ‘customary aspects’ (to be precise ‘religious customary aspects) and keep Legal aspects above all aspects. He has very clearly stated what all evidences would count for a live-in relationship.

More importantly we have to note that it says “Pre-marital sex equals ‘marriage’, must get ‘divorced’ to ‘marry’ another

I am not surprised to see the ‘moralistic’ outcries of few people because in a male dominant society one always get carried away by the mere word “Pre-marital sex”, but now this judgement insists on ‘commitment’ and demands responsibility for ‘action’ – no more it can be a mere ‘sex-play’ in the name of ‘live-in relationship’ or keeping a ‘keep’.

arey baba you got to be ‘responsible’ for your action, you just can’t spit in the vagina and run away.

Relevant Posts:

http://pratyaya.nationalinterest.in/2013/06/18/making-sense-of-madras-high-court-judgment-on-pre-marital-sex-and-marriage/

http://www.firstpost.com/india/why-the-madras-hc-judgment-on-premarital-sex-is-a-progressive-one-883961.html

http://www.legallyindia.com/201306183757/Bar-Bench-Litigation/madras-hc-pre-marital-sex-enough-to-solemnize-wedding-divorce-needed-to-marry-again

News links:

http://www.thehindu.com/news/national/tamil-nadu/couples-who-have-premarital-sex-to-be-considered-married-says-hc/article4824017.ece

http://indiatoday.intoday.in/story/hc-says-couple-of-right-legal-age-indulging-in-sex-are-husband-and-wife/1/283991.html

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