Hearing a petition by a Muslim woman whose husband was refusing to pay her alimony claiming she was not his wife, Justice C S Karnan said if a woman over 18 had a sexual relationship with a man over 21 and became pregnant in the process she had every right to be considered his wife.
Even in the absence of pregnancy if there was strong documentary evidence to show the existence of such a relationship then too the couple involved could be termed husband and wife, the court said, making it clear that if they separated the "husband" could not marry without getting a decree of divorce from the court.
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. With this act 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.
"It is not disputed that the petitioner has been a spinster before she gave birth and that the respondent was a bachelor before developing sexual relationship with the petitioner. Both of them led their marital life under the same shelter and begot two children. Therefore, the petitioner's rank has been elevated as the wife' of the respondent and likewise, the respondent's rank has been elevated as the husband' of the petitioner. Therefore, the children born to them are legitimate children and the petitioner is the legitimate wife of the respondent."
Allowing the petition from the Muslim woman, the judge directed her husband to pay her Rs 500 a month as maintenance from September 2000. While the woman claimed they were married in 1994 as per Muslim custom and she had two children with him, the man refused to pay her maintenance after deserting her in 1999, claiming she was not his wife.
Going physical changes relationship
The judge said in the judgement pertaining to the case that if a bachelor has completed 21 years of age and an unmarried woman 18 years, they have acquired the freedom of choice guaranteed by the Constitution. "Consequently, 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."
The court said marriage formalities as per various religious customs such as the tying of a mangalsutra, the exchange of garlands and rings or the registering of a marriage were only to comply with religious customs for the satisfaction of society.
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.
<blockquote class="twitter-tweet blockquote"><p>The Madras HC order doesn't seem to be binding on any other case, it was a ruling for a specific case in the context of maintenance.</p>— Barbarian Indian (@barbarindian) <a href="https://twitter.com/barbarindian/statuses/346845775126491136">June 18, 2013</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script>
The lower court had observed that the woman's wedding with the man had not been proved by documentary evidence and she was not entitled to maintenance.
In her appeal to the High Court, the woman contended that she was legally married and had two children in wedlock.
With agencies inputs