Can having sex makes one husband?

June 23, 2013 by  
Filed under newsletter-india

MarriageKerala, June 21, 2013: An Indian state court ruled this week that having sex, not a religious ceremony, is what makes a marriage valid.
The ruling did not meet with universal agreement, with some saying it actually undermines marriage and religions.

The Madras High Court, the highest court in Tamil Nadu, said on Monday that if an unmarried man and woman of legal age have consensual sex, they become husband and wife, even if no formal marriage has taken place according to any religious ritual or civil registration.

The ruling “fails to understand the purpose of marriage and life,” commented Swami Sudarshan Das of the International Society for Krishna Consciousness, a noted Hindu group that works around the world idealizing moral living.

According to Indian law the legal age at which a couple can marry is 21 years old for a man and 18 for a woman. In that case, if such a “couple chooses to consummate their sexual cravings, then the act becomes a total commitment with adherence to all consequences that may follow,” the court said.

Das questions this. If society has to accept a couple as being married just because they had sex, “then there will be chaos,” he said.

To him, the ruling demeans the value of marriage. “The purpose of marriage is not just sex; it is where a couple help each other for a better life in all aspects of life, until death. It is wrong to see sex as the basis of marriage,” Das said.

The High Court judgment this week overturned a lower court’s ruling made in April 2006.

In this case a woman went to court after her partner deserted her and their two children and the lower court ordered the man to pay monthly maintenance for the couple’s two children. It also ruled that the woman’s so-called wedding to the man had not been backed up by documentary evidence. Hence she was not entitled to maintenance.

During her appeal in the High Court the man’s lawyer argued that the children were born out of wedlock so his client was not her legally married husband.

But the High Court said the man had signed her medical records during the birth of their second child, and the consent form for caesarian surgery as her husband. Hence he accepted responsibility as a husband, the court said.

“Both led a marital life under the same roof and had two children. Therefore, the petitioner’s status has been elevated as the ‘wife’ of the respondent,” the court said.

The core of the judgment was that “one cannot enter into irresponsible sexual relations” and the sex life of the couple can be “construed to be legal status of marriage,” said Father Paul Thelakat, spokesperson of the socially powerful Syro-Malabar Church based in Kerala.

The judgment cannot be taken as “a rethinking of the whole concept of marriage and abolishing the religious and ritual nature of marriage,” he said.

However, he does not think “this judgment is one of such comprehensive nature and extension.”

All the same, one point is unclear to him. Can a casual sex act be construed as marriage?

Father Thelekat does not think so. “Marriage is also a social contract where there must be some social ritual” to ratify it as well as “having explicit and clear consent” given to it by parties getting married, he said.

One of India’s leading Muslim clerics also rejected the ruling. “This is not acceptable in Islam,” said Shahi Imam Ahmad Bukhari of Jama Masjid in New Delhi.

“Sexual relations in our religion are only acceptable after marriage, otherwise they are illegal,” he told

He said the ruling would only increase “shameful and disgraceful acts in society” and will encourage young people to cohabit and have sex while claiming to be husband and wife.

“No parent would want their children to have such a relationship,” he said.

Whatever the views, the judgment should not be mixed with religions and rituals, said lawyer George K. Jose. The associate professor of law at Christ University in Bangalore said the court’s priority was only to provide justice for an aggrieved party, not target religion.

However, “it becomes a dangerous ruling when it equates sex with marriage.” Sex is only one aspect of marriage along with emotional bonds, children, co-habitation, financial sharing and so on,” said Jose, an expert in Indian family law.

In this case, the court could have said they were husband and wife because they had lived as such in all respects, except for registering their marriage through a ritual or civil court, he said.

“Besides, laws are not against consenting couples having sex outside of marriage, neither does society see all couples having sex as husband and wife,” he said.

Jose said the verdict is applicable only in this particular case and similar cases in Tamil Nadu but could be referred to if similar cases come up in other states.

This ruling, however, can be overturned on appeal by India’s Supreme Court, he added.

– ucan

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