With respect to the Chennai High Court its recent ruling that suggests that premarital sex amounts to marriage, is susceptible to misunderstanding. The judgment of the high court has come in the context of a long-term ‘live-in’ relationship, and not one of a brief duration, but is worded in such a way as to give the impression of an interpretation of the law close to questionable. The question of premarital sex in modern societies is fraught with difficulties as differing moral standards exist and as values of various social groups clash. There are many, including religious groups, who abhor the very idea of such relationships, instant or otherwise, outside marriage, yet there are others who would regard such views as conservative. In the liberal space of a modern society, there is room for relations of varying kinds of intimacy between unmarried grown men and women provided they are consensual. To be fair to the Chennai High Court, it has attempted to give maintenance to a woman who, though not married to a man, has lived with him for several years and has had children but with the relationship breaking up. It is indeed a good question of law as to what the rights of a woman in such a long-term relationship should be. There are issues that pertain to the division of property as also the paternity and custody of the children, if any, among others.
In many countries, couples provide for the circumstance of breakup by previously executing documents and courts have begun to recognise the familial ties of unmarried but cohabiting couples that in turn confers certain legal rights to them. ‘Live-in’ relationships are not particularly new in India and nor is the legal protection given to them by courts. Yet, the Chennai High Court, to the extent observations in its judgment have given the impression that almost any act of premarital sex amounts to marriage, has done violence to the spirit of the law. To regard each and every such bond as a marriage not only places a strain on the various kinds of understandings arrived at between consenting couples and thus insults their intelligence but is also against the flow of social trends that allow for more flexible arrangements between couples. If the high court was to clarify that the intent of its judgment was for it to apply only to ‘live-in’ couples it would do the public a service.