Madras High Court Judgment on

Premarital Sex: The Reality

June 26th, 2013 10:32 pm @ Aastha Mishra

India was left astonished on the morning on 17 th June. Newspapers, Everyones Facebook
status, BBM status and tweets were about a certain high courts judgment stating if you
have pre-marital sex with a person, you will be considered married to them.
People suddenly found it extremely funny to ask others how many times have they been
married and or how many wives have they left behind.
The general tendency in our country is to raise a hue and cry for
everything and then comes mockery by the we have an opinion about everything. The
media channels, newspapers can twist and interpret things in a way most convenient to
them and most entertaining to public.
After going through an article in the Bar&Bench website, written by Mr. Mrinal Satish, I
came to a conclusion that insight into the facts and evidence in this case is important before
forming an opinion.
If only anyone would have looked into the details and facts of the case, they would have
realized, however Bizarre the judgment might have been, it provided Justice to the needy.
Facts of the Case
The case, Aysha v. Ozir Hassan Popularly known as the Madras High court pre-marital
sex case. is an excellent example of beating around the bush.
Before getting to the relevancy of the judgment, it is necessary to look into the facts of this
case.
The petitioner, Aysha had filed a petition for maintenance in the Coimbatore Family Court.
She claimed that she married the respondent, Ozir in 1994, in a mosque with Muslim
customs. They had two children from the marriage; Ozir then deserted the family, and
denied their marriage. To substantiate her claims of being Ozirs wife and the children being
theirs, Aysha produced the live birth report of their second child, where Ozir was named as
the father of the child along with the documents for a C-section where he signed as her
husband. Ozir first denied the marriage. He then argued that the marriage was not valid as
per Muslim customs, because it had not been recorded in the Nikah book.
The Family Court ruled that Ozir was the father of the two children, and hence, was required
to pay them maintenance of Rs. 500 per month. However, it ruled that since Ayshas
marriage to Ozir had not been proved through documentary evidence, she was not his
wife and hence, was not entitled to maintenance. Aysha approached the High Court
against this order of the Family Court.
Ayshas counsel argued that the Family Court had erred in holding that Aysha was not Ozirs
wife solely on the basis of the non-registration of the marriage in the Nikah book in the
mosque. And also that major evidences provided by them were overlooked by the family
court.

The Judgment

After looking into the facts, the judgment given by the Madras high court held,

It held that for a valid marriage, all customary rights need not be followed and
subsequently solemnized. As long as the couple is not disqualified by law from marrying
each other, and a third partys rights are not affected, the couple can be declared to be
spouses by the court. This declaration would be on the basis of whether they have had a
sexual relationship. The Court held that if a woman aged 18 and above, and a man aged 21
and above, have a sexual relationship, they will be treated as husband and wife, especially if
the woman becomes pregnant. Even if the woman does not become pregnant, if there is
strong documentary evidence to show existence of such relationship, they will still be
termed husband and wife. The Court ruled that if, and only if, a man and woman have a
sexual relationship would they be considered to be validly married. Consequently, if they
break up, the man cannot marry anyone else unless he gets a decree of divorce from a
court. On the other hand, if a man and a woman get married after following all formalities,
but fail to consummate their marriage, such marriage will be a failure, void or lapse. It
would be an invalid marriage.
Thus, Ozir was liable to pay maintenance to all three, Aysha and her two kids.

Conclusion

The purpose of judiciary in our country is to serve justice to the weak and victimized and
the judgment given completely solves the purpose.
For a layman it is but obvious to take it in a generalized way, criticize how the judgment was
articulated, and mock about it, but a little insight into the facts of the case, it does not
sound THAT absurd.
The judgment agreed is controversial and if I may, a lousy approach to the right path, but it
defiantly is on the right path.
As we can see here, the court ruled in the favor of the victim, and so it can be said that it
is progressive in nature since it legalizes an alleged live-in and takes a different turn from
the usual patriarchal trends in our country.
It is also important to know that if the Madras high court would have given precedents from
the Supreme Court judgments, the result would have been the same. They should have
taken this alternate approach to justice. Only god and the Judge himself know what led to
this controversial facade.
As far as the articulation is concerned, I would personally be interested in seeing how the
Supreme Court reacts to this (that is, if Ozir appeals)
Lets hope the judgment is upheld with a better explanation by the honorable Supreme
Court and guidelines regarding similar cases are set once and for all, so that no new way of
marrying off people is invented by the court and rebuked by the public.