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Indian Couples Who Have Premarital Sex To Be Considered Married, Madras High Court Rules

20/06/2013 11:24 BST | Updated 20/08/2013 10:12 BST

Couples who have premarital sex are to be considered legally married, an Indian High Court has ruled.

Specifying both parties must be of legal age, the ruling from Madras Justice C S Karnan stated that should the couple decide to later separate, the "husband" would not be able to remarry without getting a decree of divorce from the "wife".

He added marriage formalities and customs such as the exchange of garlands and rings were simply to comply with religious customs, The Hindu reports.

indian henna marriage

Couples of legal age, who have premarital sex, are to be considered legally married (file picture of Indian bridal henna)

According to court documents, the judge's statement came after hearing an appeal by a woman who sued her former live-in partner of five years to pay child support for their two children. A lower court had previously ruled she was not owed any money because there was no documentary evidence of a legal marriage between the couple.

On Monday, Karnan overturned this ruling, stating the couple's sexual relationship was tantamount to being wed.

The announcement has been fiercely debated on social media platforms.

However, some say the judgement is a progressive one. Blogging for FirstPost, Apoorva Dutt writes:

The judgment is, in effect, validating a live-in relationship, or what is legally known as a common-law marriage. Common-law marriages are legal marriages which can be legally contracted. The couples, in these cases, are legally married for all purposes and in all circumstances. They, however, have no marriage license and have not had any formal ceremony in front of witnesses. They should have been cohabiting for a long time.

Referring to the earlier ruling overturned by Karnan, Dutt adds:

The Madras High Court has (inadvertently, perhaps) passed a very progressive and pro-equality judgment in this case. Rather than taking all the fun out of premarital sex by declaring it marital instead (as everyone is cackling about online) they have legitimised a long-term cohabitation which resulted in two children. They have also legitimised the children, who will not have to bear the societal stigma of having been born out of wedlock. The legitimisation of children will however, only be applicable in cases where the marriage is established by a court. Thirdly, they have ensured that in case of the dissolution of marriage, the children and the spouse will be financially taken care of.

Meanwhile activists and experts are cautioning against a "narrow reading" of the ruling, which they say simply simply seeks to establish rights and responsibilities in relationships that may not be recognised in law.

Meenakshi Ganguly, South Asia director of Human Rights Watch, told The New York Times: "“I think the wording of the media reports around the judgment led to the furor because it seemed that it broadly claimed that all premarital sex among consenting adults could be treated as marriage.

“In fact, India does not have any law governing de facto unions that are not recognized as marriage.”

Reaction to the ruling prompted Karnan to take the unusual step of defending the order, claiming it "protected Indian culture and welfare of women," The Times of India reports.

"This court's order does not in any way run against any religion and is not intended to wound any Indian. The order had not in any way degraded the system of marriage performed as per the various religions and customs and rites among the various community."

Karnan added: "If a bachelor aged 21 years or above and a spinster aged 18 years or above had premarital sex with the intention to marry and subsequent to this the man deserts the woman, the victim woman can approach a civil forum for remedy after producing necessary substantial evidence to grant her social status as a wife.

"This remedy is not only for the purpose of giving relief to the victim woman but also to maintain the cultural integrity of India."