A Madras high court judgment allowing a woman’s plea for maintenance from her live-in partner on the ground that their relationship would be treated as a marriage was hotly discussed in the social media on Tuesday. When Justice CS Karnan ruled that the relationship between the couple had marital status before law because they had sexual relations, they lived under the same roof and had two children, he would not have imagined that a news report on the judgment would get shared over 15,000 times on Facebook in a few hours.
What provoked interest and outrage over an otherwise routine judgment was the wording of a sentence: “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 other parts of the judgment, however, reiterates the right of women in live-in relationships to maintenance and argues that a valid marriage does not mean all formalities — arising from customs, religion, and society — have to be complied with. The high court was disposing of an appeal against a lower court order denying the woman maintenance as she had no documentary evidence to prove her marriage. While the trial court ordered the man to pay Rs500 as monthly maintenance to the couple’s two children, the high court has now asked the man to pay an additional Rs500 to the woman too.
It can reasonably be argued that the judgment would act as a precedent and criminalise pre-marital sex. The problem in this particular case lies in the generalised wording (“any couple”) of the judgment, which seems to convey a sense of moralising coercion. We must keep in mind the orthodox and conservative social context in which such words are uttered in a court of law.
Pre-marital sex continues to be a taboo, an act which is often severely punished through extra-judicial means. Even though it’s well documented by now that many adolescents as well as adult women and men, both in rural and urban India, engage in sexual activity before their marriage.
The hard fought right to exercise sexual autonomy has and is still being fiercely contested by deeply conservative sections of our society, cutting across caste, class, creed and profession. By linking pre-marital sex with marriage, the judgment runs the danger of fortifying regressive arguments put out by conservative lobbies forever seeking to punish ‘‘social transgressors” exercising their freedom of choice, especially sexual autonomy. Consider the innumerable incidents of Khap panchayats brutally punishing young couples, sometimes even putting them to death, for transgressing socially prescribed codes of conduct.
Or consider the case of the Tamil Nadu actor Khushboo. In 2010 the Supreme Court dismissed 22 cases filed against filmstar Khushboo for her comments that it was “fine” for girls to have pre-marital sex, provided they took contraceptive precautions, in a magazine interview. Her comments had set her on a collision path with various sections of orthodox, illiberal sections targeting her for advocating pre-marital sex.