By Mrinal Satish
“Couples who have premarital sex to be considered married, says HC.” This headline that appeared in The Hindu on June 17 created waves across the social media. The judgment was criticized by some, and hailed by a few others. What was the case actually about? Were the remarks made by the judge about pre-marital sex merely off the cuff statements and hence, purely obiter, which should not have garnered as much attention as they did? Or did this case break new ground in relation to the law of maintenance? In this post, I deal with these questions. I argue that if the High Court had relied on existing precedents, it would have reached the same conclusion that it did – that the petitioner was entitled to maintenance. However, in order to arrive at this conclusion, the Court declared that if a man and a woman have sexual intercourse, they can be considered married. It further held that consummation is the sine qua non for a valid marriage. Noting that there was evidence to show that the petitioner and the respondent had had sexual intercourse, the Court declared them to be husband and wife, and consequently that the woman was entitled to maintenance. The basis on which the Court reached its conclusion is highly problematic, and hence, the criticism that the judgment has received is warranted.
Facts of the case
The facts of the criminal revision petition in Aysha v. Ozir Hassan are fairly straightforward. The petitioner, Aysha had filed a petition for maintenance in the Coimbatore Family Court. She claimed that she married the respondent, Ozir in 1994, following Muslim customs. Two children were born to them – one in 1996, and the other in 1999. Aysha alleged that in 1999 Ozir deserted her and they had not lived together ever since. To substantiate her claims of being Ozir’s 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. He had also signed a consent form for a caesarean section performed on Aysha for delivery of the child. Ozir refuted Aysha’s claim that she was his wife. He 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 in the local mosque, which according to him was an essential requirement for a Muslim marriage to be valid. He also denied paternity of the two children.
The question before the Family Court was whether Aysha was Ozir’s wife and whether he was the father of her two children; and hence, liable to maintain all three. 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 Aysha’s 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.
Aysha’s counsel argued that the Family Court had erred in holding that Aysha was not Ozir’s “wife” solely on the basis of the non-registration of the marriage in the Nikah book in the mosque. It was argued that the Court ignored the other pieces of evidence that had been produced to show that Aysha was Ozir’s wife – evidence that had not been opposed by Ozir. It was also pointed out that Ozir had in fact filed an application for a “family card,” where he had stated that he was the head of the family. Hence, the main issue to be decided by the High Court was whether Aysha could be considered Ozir’s “wife,” for the purposes of Section 125, Cr.P.C., regardless of their marriage not being performed as per the required customs.
This question had been dealt with by the Supreme Court in a number of cases. Though the High Court did not take this route, it could have (and it should have) relied on these precedents to arrive at the conclusion that Aysha should be considered Ozir’s wife for the purposes of Section 125. I discuss these cases below.
Supreme Court’s Jurisprudence
The issue of whether 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, even if their marriage was not validly performed, was dealt with in Vimala (K.) v. Veeraswamy (K.), [(1991) 2 S.C.C. 375]. In this case, a three judge bench of the Supreme Court, interpreting Section 125, Cr.P.C., held that a woman who does not have the legal status of a wife can fall within the purview of the section. It noted however, that if a woman marries a man whose valid marriage is still subsisting, such a marriage will be void, and hence, she will not be entitled to maintenance. In Vimala, the parties involved had married in a customary form, and had lived together as husband and wife. The respondent husband claimed that he had a subsisting valid marriage prior to marrying Vimala, but was unable to prove this fact. Hence, he was ordered to pay maintenance to her.
Another case of relevance is Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 S.C.C. 675]. In this case, the Supreme Court ruled that in a proceeding under Section 125, Cr.P.C., the standard of proof of marriage is not as strict as in proceedings under Section 494, Indian Penal Code (bigamy). It ruled that if a woman establishes that she and the man have lived together as spouses, a court can presume that they are legally wedded. The presumption is however rebuttable. The man has to lead evidence to rebut the presumption.
When tracing the jurisprudence of Section 125, there appears to be some confusion as regards whether “wife” in that section should be interpreted to exclude a woman who is not legally married to the man from whom she seeks maintenance. This is because of two cases, where two-judge benches of the Supreme Court held that “wife” in Section 125 refers only to a legally married wife. On a closer analysis of these two cases – Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav [(1988) 1 S.C.C. 530] and Savitaben Somabhai Bhatiya v. State of Gujarat [(2005) 3 S.C.C. 636], it is clear that these cases are in relation to “second wives,” i.e., women who unwittingly got married to men who were already validly married. The Court in these cases held that since the women could not be validly married to the men, they could not be wives for the purposes of Section 125. In fact, this was noted by the Supreme Court in Pyla Mutyalamma v. Pyla Suri Demudu [(2011) 12 S.C.C. 189], where discussing Savitaben, the Court held that the legal position reiterated by Savitaben was that a claim of maintenance by the “second wife” cannot be entertained if the man had a subsisting valid marriage, and his wife were still alive. Therefore, these decisions do not apply to cases, like Aysha’s where there is no claim that a man has a pre-existing and valid marriage.
The jurisprudence of the Supreme Court is hence clear, especially in situations where the woman was the man’s “first wife.” If a man, and a woman have lived together for a period of time, and the woman leads evidence to that effect, it can be presumed that she is his “wife” for the purposes of Section 125. In any case, since the main issue before the Madras High Court was whether a presumption of valid marriage can be drawn if the parties had lived together for a long time, regardless of the fact that their marriage was not validly performed, the Court could have held that Ozir was liable to pay maintenance, citing Vimala and Dwarika Prasad Satpathy as precedent.
The Decision of the Madras High Court: Consummation = Valid Marriage
The High Court did not cite any of the cases mentioned above in reaching its decision. In fact, it does not even cite any legal provisions to substantiate its judgment. In arriving at the conclusion that Ozir is liable to pay maintenance to Aysha, the Court ruled as follows: 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 party’s 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. The Court also ruled that if either party in the sexual relationship approaches a Family Court with “documentary proof of evidence” of such relationship, the Family Court may issue a declaration of marital status. Using such declaration, the person can get the name of the other endorsed in all government records as his/her spouse.
Thus, the court ruled that the sole basis of determining validity of a marriage is consummation. It held that although Ozir and Aysha had not married following customary practices, since their marriage had been consummated, it was a valid marriage, and Aysha could be declared to be Ozir’s wife. It further ruled that by signing hospital records, Ozir had admitted that Aysha was his wife.
Brickbats or Bouquets?
The judgment of the Madras High Court is clearly per incuriam. It ignores existing law relating to validity of marriages, and divorce. Problematic however is the basis on which the Court arrived at its conclusion that Aysha was Ozir’s wife for the purposes of Section 125. The “reasoning” was that the two had had a sexual relationship, and there was documentary evidence to prove the same – the birth records. Although the conclusion reached by the Court that Aysha was entitled to maintenance was correct, the Court did not provide a legal basis for arriving at such a conclusion.
This case might not have specific relevance to anyone other than the parties involved, but is symptomatic of a deeper issue in judicial adjudication – the shocking lack of legal reasoning. That the judge did not see any problem in “declaring” as “law,” statements that contradicted existing statutory law and judicial precedent is troubling. What made matters worse was the subsequent clarification issued by the Judge, wherein he justified the judgment in the name of safeguarding Indian culture. This judgment shows the immediate need for emphasis that needs to be given to legal reasoning in the exercise of judicial discretion. Defining judicial discretion, Justice Aharon Barak says that judicial discretion is the “power given to a person in authority to choose between two or more alternatives when each of the alternatives is lawful.” He further says that judicial discretion should always be guided by a Constitution, a statute, or common law. 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 criticized 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.
Mrinal Satish is an Associate Professor of Law at the National Law University, Delhi.
 See: Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 S.C.C. 141 (where the Court noted that there is a divergence of opinion in relation to the interpretation of “wife” for the purposes of Section 125.
 There are two recent decisions of the Supreme Court which are often discussed in the context of interpretation of the term “wife” for the purposes of Section 125, Cr.P.C. The first is Chanmuniya v. Virendra Kumar Singh Kushwaha [(2011) 1 S.C.C. 141], and the second is D. Velusamy v. D. Patchiammal [(2010) 10 S.C.C. 469]. In Chanmuniya, taking note of the divergence in view in relation to the interpretation of “wife” in Section 125, a two-judge bench of the Supreme Court referred the matter to a larger bench to resolve the issue. One of the main issues before the Court was whether the two parties living together for an extended period of time leads to a presumption of valid marriage, and consequently, to a claim of maintenance under S. 125 Cr.P.C. Citing decisions of the House of Lords, and a series of cases decided by Indian courts, including the Supreme Court, the Court arrived at the conclusion that there was a strong presumption in favour of marriage. It observed that in cases where a man and a woman live together for a long time, the man should be liable to pay maintenance if he deserts the woman. In other words, the woman should be considered the “wife” of the man, even if they have not undergone legal necessities of a valid marriage. The Supreme Court also noted that the Protection of Women from Domestic Violence Act, 2005 should also be considered while interpreting Section 125, Cr.P.C. Noting that the Act provided for maintenance for women in “relationships in the nature of marriage,” it observed that the interpretation of “wife” in Section 125, Cr.P.C. should be broadened as well. However, it left the final decision to the larger bench, which is yet to rule on the matter. The question to be decided by the larger bench is whether the meaning of “wife,” should be broadened to include both a “second wife,” and women who are in live-in relationships with men.
In Velusamy, the appellant appeared to have been in a subsisting valid marriage at the time of marrying the woman who approached the court seeking maintenance for him. Since the lower courts had ruled that the first marriage was not valid, without hearing the “first” wife, the Supreme Court remanded the case back to the Family Court. However, while doing so, it interpreted the term “relationship in the nature of marriage” in the Protection of Women from Domestic Violence Act, 2005 to mean a common law marriage or a live-in relationship. Since the Court did not rule on the meaning of “wife” for the purposes of Section 125, this case is not relevant for the purposes of the discussion here.
 The only instance where a statutory provision is mentioned is in summarizing arguments of the parties, where the Court notes that the counsel for the petitioner made a mention of Section 112 of the Indian Evidence Act.
(First Published in BarandBench)