The Hon’ble High Court of Judicature at Madras in Aysha Vs Ozir Hassan, held that
if a bachelor who has completed 21 years of age and a spinster who completed 18
years of age indulges into a sexual act, then they would be considered as
legally wedded couple. The Hon’ble Court was of further view that even after
such a sexual relationship, if both decides to separate; the husband or wife
cannot marry without getting a decree of divorce from the court of law.
Consequently, any couple who 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. Therefore, the
marriage formalities as per respective religious customs viz., tying of thali,
exchange of garlands, exchanging of finger rings, circling around the
matrimonial fire pit or registering of marriage at a Government Registration
Office is only to comply with each one’s respective religious customs for the
satisfaction of the society.
The Hon’ble Court further observed, if any couple, subject to their
attaining the mandatory age of freedom, who indulge in sexual gratification,
then that would be considered as valid marriage and they could be termed as
“husband and wife”, as a result of their choice of freedom. On the other hand,
in some cases, both bachelors and spinsters, who adhering to all formalities of
their respective religion and culture with marriage solemnized, find it that
their conjugal rights for sexual consummation had not been fulfilled, then such
a marriage is deemed to be a failure, void or lapse. So in total, what is
expected after adhering to norms and formalities is the sexual consummation by
the couple. Hence, the main legal aspect for valid marriage is consummation or
sexual interaction.
The Hon’ble Court further observed that, if necessary, either party may
approach the Family Court for declaration to the effect of marital status by
supplementing documentary proof of evidence in order to prove the sexual
relationship. After such a declaration from the concerned forum, the victim can
establish herself in all the government records or any other relevant records
where she can encrypt her name as wife to her counterpart. Legal rights
applicable to the normal wedded couples will also be applicable to couples who
have had sexual relationships which are established.
The Hon’ble High Court held that the main legal aspect for valid
marriage viz., consummation between both spouses has happened even before the
formalities. If the consummation has taken place between the spouses (bachelors
and spinsters) then from that time onwards both are declared husband and wife.
This declaration will not be prejudicial to either party. This Court’s further
view is that this declaration would strengthen the Indian Culture and would
protect the young women’s welfare, character and status among the society. This
pertinent view of this Court is in order to protect Women’s Civil Rights and
personal life. This Court further opines that it is an appropriate time to
prevent the Indian Culture from deteriorating further when it comes to living
honestly as spouses. It is an imperative need that the morals and ethics of
Indian Culture is taken to the next level and maintained so as to never slander
the life of an innocent woman. Finally and most importantly the Courts do give
paramount importance to the customs and rights to every religion so long as it
remains in tandem with civil rights that are controlled by the Courts.
Prepared by: S. Hemanth
Advocate at Hemanth &
Associates
