High Court debate
Editorial. Subbarayudu G Kameswara. December XII. XIII
Marriages of inconvenience?
By Subbarayudu G Kameswara
Kranti Kumar and Mrinalini Singh, among others, have brought the Madras High Court's verdict into social media focus. Sexual consummation is marriage. Rituals are social approval but do not constitute marriage. Sexual congress with or without rituals, between consenting adults of legal age is marriage.
The High Court's verdict must be read in full before assessing its scope and applicability. However, the Court's judgement is laudable to the extent that it does not indulge in wishy-washy statements about the 'high' purpose of human marriage; it does not relegate sex to a hush-hush job one must always be coy and almost apologetic about. Legal issues may emerge: what is 'rape'? What is pre-marital sex? What happens to personal and community property? Are children legal heirs? Does consensual sex obviate the need for rituals; religious and social approval? May a couple discontinue life together, i.e. 'divorce' each other without 'ritual' legal approval?
The judgement courts discussion. In predominantly rural economies of the world, the urbanity of this judgement will not go down well; it is another thing that urban economies will have their own issues, too. The Indian sub-continent with its religious and cultural diversities, continues to be largely rural in its mindset. Sexual experiment may not be unknown but opposition to unconventional behaviour is frighteningly strong. Orthodoxies are nearly unquestionable and invite terrifying repercussions with the approval of the orthodox societal hierarchies. From female infanticide to child-marriages, and bride-burning, every form of behaviour reflects this rigidity.
Urban agglomerations display variations of this theme. Aarushi Talwar to Geetika Sharma - Gopal Kanda (former Haryana Minister), to Khap Panchayat's banning girls from holding mobile phones... India provides a blur of images designed to drive one to despair. While tradition provides for Gaandharva and Raakshasa vivaaha, contemporary urbanism provides for live-in relationships and ultra-sound directed female foeticide. Culturally and economically there seem enough 'logical' grounds for the manifestation of these forms of 'human' behaviour, i.e. people can logically explain and justify their behaviour regardless of what may be understood as universal 'civil' norms.
What does the Madras High Court have to say in this judgement which can shake a few foundations of the society? The Honourable Court is saying the purpose of marriage is sexual and reproductive, and the ritual approval by society provides for a measure of economic and social security for the woman and the progeny; and that the rituals in themselves confer no status on the individuals vis-a-vis each other or the society; and that only sexually consummated relationships confer and confirm the 'ritual sanctity' of marriage, both socially and legally; AND sexually consummated relationships are and must be treated as valid 'marriages' though there be no ritual accompaniment.
This judgement confers legal rights on the women and the progeny. Illegitimacy, bastardy are at least partially erased. As much of a landmark judgement as Justice P.A Choudary’s judgement on the issue of Restitution of Conjugal Rights - RCR, in short - (T. Sareetha Vs. T Venkatasubbaiah, 1983). The Honourable Court had held that the RCR provisions were unconstitutional and forcing a person to cohabit with another was a violation of the Fundamental Rights conferred by the Indian Constitution, besides being a barbaric and alien law.
It is quite another matter that the RCR issue continues to attract debate by way of pro and anti-abolitionist views. It is important to note that human right to privacy,choice and dignity were considered worthy of upholding against the force of history and precedent law.
What the Madras High Court has done now is to uphold such right to privacy, choice and dignity in sexual relationships, and the legality of behaviour and resulting responsibilities regardless of the trappings of ritual. Ritual and reality should not be confused with each other, especially to escape legal responsibility arising out of such 'considered' behaviour. None must undermine this judgement nor take undue advantage of it. It is as fine a judgement as current human intelligence can deliver.
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