Flawed reasoning that has no backing of existing laws, lack of required judicial discretion, failure to accord permissible amount of maintenance are some of the flaws of the judgment passed by the Chennai High Court last month
By Aruna Burte
“….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.” Thus declared Chennai High Court judge C.S. Karnan, on 17th June 2013, while giving judgement on the criminal revision case of maintenance of Coimbatore family court.
The judgement created a huge controversy and provided fodder to all sorts of reactions verging on frivolity on various social networking platforms. Though the hype died down, the real issue was relegated to oblivion!
However, it is very important to discuss the issue because it is about judicial discretion and awarding permissible maintenance.
The case
The facts of Aysha v. Ozir Hasan (MN.64 of 2000 of Coimbatore Family Court) case are: Ayesha claimed that she married Ozir Hasan in 1994 and had two children (dates 21.12.1996 and 31.12.1998). They stayed as family until 1999 when he deserted her.
She filed for maintenance of Rs.5000/- as her husband’s earning was Rs.25000/- in the year 2000. She submitted proofs which included birth certificates of their two children, her husband’s signature for a caesarean operation (for the birth of the second child), a family certificate where his signature appears as the head of the family and witness of doctor who performed family planning operation on her.
The family court granted maintenance Rs.500/- per child and Rs.1000/- towards court expenses to the woman on 28.4.2006 but denied her maintenance citing the lack of documentary proof of her marriage. She appealed to the high court.
The Chennai High Court judge C.S. Karnan revised the family court order and granted Rs.500/-maintenance to the woman. She would be entitled to this from the date of petition i.e. September 2000. The arrears from that date onwards till May 2013 would have to be paid in three months and a sum of Rs 500 per month thereafter.
The judgement
The awarding maintenance to the deserted woman is creditable. The judgement, however, fails on two grounds. One – it is full of flawed reasoning. Two – it does not award a permissible amount of maintenance to the woman.
The main issue in this case was how to decide woman’s marital status in the absence of sufficient documentary proofs of marriage. The proof of five years co-habitation along with birth certificates of children was enough ground to grant maintenance under section 125 Cr.P.C. It was the first marriage for both the woman and the man in question. They had no third party encumbrance. They were both of legal age. What needed was to expand the definition of ‘wife’ as in earlier cases of Supreme Court. For example in Vimala (K.) v. Veeraswamy (K.), [(1991) 2 S.C.C. 375, the man had denied the marriage. There was no documentary proof of marriage but the proof of a fairly long period of cohabitation was submitted. The man extended the argument that he had married earlier. However, he could not submit proof for this argument. Therefore, the Supreme Court declared that the man is liable to pay maintenance to Vimala.
In another case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 S.C.C. 675, the Supreme Court said that it is not strictly mandatory to provide documentary proof of marriage under section 125 Cr.P.C. unlike the bigamy section Cr.P.C. 494. Under Cr.P.C. 125, if the woman is able to submit proof of co-habitation for a sufficient period of time, the man and woman in the case would be considered as husband and wife. The man has the scope of disproving cohabitation by providing proofs. But if he cannot do so then he is liable to pay maintenance to the woman. The Chennai High Court could and should have made the argument by sighting similar judgements. But the judgement did not do so.
Instead, it gave opinions on valid marriages, sexual behaviour, and validity or otherwise of registration and host of such matters. In other words, the reasoning of the judgement is based is seriously problematic. It does not show required judicial discretion which is clear from the following sentences of the judgement:
“This Court is of the view that if a woman aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the ‘wife’ and the man would be treated as the ‘husband’. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such relationship then also the couple involved in such acts would be termed as ‘wife’ and ‘husband’.”
The judgement in the next paragraph states if the there is any dispute the ‘husband’ in such relationship has to obtain divorce before he marries second time! It further says:
“This Court is of the further view that if the bachelor has completed 21 years of age and the spinster 18 years of age respectively then they acquire the freedom of choice as guaranteed by the Indian Constitution. Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment which adherence to all consequences that may follow except on certain exceptional considerations. Therefore, the marriage formalities as per custom or registering of marriage at a Government Registration Office is only to comply with each one’s respective custom or for the satisfaction of the society.”
‘Hence, the main legal aspect for valid marriage is consummation or sexual interaction…’
The court declares the woman in question ‘wife’ and the man ‘husband’ in arbitrary manner. And hence, the man is liable to pay maintenance to wife. The arguments are problematic for the following reasons:
• As shown in the paragraphs above the arguments have no backing of existing law relating to validity of marriages and divorce and also of previous cases.
• It carries conflicting statements. For example it says, ‘In India there is no need of registration of marriage to prove validity, only the proof of sexual relationship is sufficient’. In the same breath it states, ‘if the couple wants to seek divorce in such cases they should do so legally’.
To take a legal divorce, some documentary proof would be required. In one sentence processes that provide documentation like registration is trashed and in the next its requirement is stated. On one level the registration of marriage is trashed and on the other all adult consenting sexual relations are declared marriage. What can be said of this sort of ill-logic?
• This conflicting and contradictory statement raises more questions than answering the existing ones. For example, what about short-time sexual relationship? What happens to citizens who are against ‘marriage’ as such? Is registration of marriages so insignificant?
• The choice of words like ‘sexual gratification’ and ‘any couple who want to consummate sexual cravings’ show non-liberal, moralistic, narrow and judgemental attitude towards male-female sexual relations. To declare all consenting sexual relations as marriage is nothing short of assuming moral policing. This attitude hampers the autonomy and privacy of citizens which is pre-requisite of democracy. Such ideology cannot ensure women’s rights in the end.
• Such regressive ideology compartmentalises human sexuality into ‘marriage’ and ‘prostitution’. There is patriarchy lurking in it. In fact, men and women are interacting freely due to education, profession, jobs, art, etc today. The young generation wants to breathe free of restrictions of marriage. Many want to go in for live-in relationships. The horizons of personal freedom and concepts are ever increasing. Only liberalism can help to create responsible sexual relationships amongst the youngsters. The opinions in the judgement are not conducive for creating such milieu in the society. For protecting women’s right to maintenance how can broader democratic rights of which women’s rights are part, be flouted? It is viewing women’s rights from the point of male dominance after all! Sadly, one has to admit that our learned judges are also product of the all pervading patriarchal world-view.
• Lack of legal discretion is dangerous. It is arbitrary and therefore not in the tradition of democracy and liberalism. Democracy allows citizens to exercise autonomy in personal lives.
• In fact, the lower courts depend on the judgements of High Courts. Therefore, the high court judges are expected to exercise greater discretion. But the present judgement is wrongly argued and lacks legal discretion.
There is a tradition of judges expressing their perspective while delivering judgements. This judgement could have done following:
• Could have ascertained whether the maintenance paid for children is applied from date of application or not. And whether it is paid regularly, since there are many defaulters.
• Under the same amendment, it was directed to dispose of such cases in 60 days from the date of application. In this case, it was relevant that judge could have commented upon.
• Could have increased the limit of maintenance by sighting amendment of 2001 to Cr.P.C.125 wherein limit of Rs.500/- was lifted. Do high court judges, not only in this case but in many other cases, not know of this amendment or they do not want to interpret the law in favour of disadvantaged i.e. women? With the limit of Rs.500/- deleted, judges are free to interpret the amount of maintenance based on the income of the respondent.
• This judgement had the scope to state the need of expanding economic rights of women beyond the sum of maintenance to ‘matrimonial property or community of property’. But it is very difficult to this looking at the mindset from which this judgement originated.
Finally, but most importantly, we all have to understand that ‘maintenance’ is one side of the coin of women’s secondary status due to patriarchy. We need to revise the campaigns for rights of deserted women led by Ms. Vijaya Chauk of 1990 of Dhule district in Maharathtra; long drawn struggle asserting land rights of single women of Bahe village in Maharashtra and present day single women’s struggles.
They all demand economic rights of and entitlements for women i.e. jobs, employment, opportunities, rightful shelter, credit etc. While these struggles outside the perview of courts are important to bring substantial relief and dignity to women it is equally necessary to critique judgements from feminist and democratic rights point of view.
Aruna Burte is a writer and feminist activist based in Solapur, Maharashtra