Receiving maintenance is reaffirmation of a traditional role for a woman or, is it an assertion for equality? Maintenance money paid to Aysha, an unwed mother, has put the feminists and the judiciary in a dilemma 

Aruna Burte in The Tribune 

“….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.” This was stated in a judgement by Justice C.S. Karnan of Chennai High Court, on June 17, 2013. Justice Karnan gave the judgement while modifying an April- 2006 judgement of a family court in a maintenance case. A family court in Coimbatore had ordered a man to pay Rs 500 maintenance per month to his two children and Rs 1000 as litigation expenses and had held that the woman’s wedding with him did not have any documentary proof. Hence, the woman was not entitled to maintenance.

Sandeep Joshi

The judgement created a furore, polarising opinions on the regressive statements of the judgement that equalled all sexual relations between adult man and woman to a marriage, thereby raising questions on the validity of social rituals associated with marriage. Indirectly, the judgement also raised questions about maintenance money to be granted to a woman who is in a relationship but not a wedded wife. While the controversial judgement granted the woman right to maintenance, it also established the woman’s place in a traditional mode – that of a receiver rather than a claimant of equality.

The judgement provided fodder to all sorts of reactions verging on frivolity on social networking sites. All the hype died down a few days later and relegated the real issue to oblivion. The real issue being judicial discretion and awarding of permissible maintenance to a woman who is not wedded to the man she lives with. Strange as the ruling may seem, it must be admitted that Justice Karnan was indeed confronted by the hard facts of the case, which would shock judicial conscience.

The case

The facts of Aysha v. Ozir Hasan (Coimbatore Family Court-2000) case that created such a furore are: Ayesha claimed that she married Ozir Hasan in 1994 and had two children (born on 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 of birth certificates of her two children, with her husband’s signature on the caesarean operation of the second child, a family certificate where his signature appears as head of the family and witness of the doctor who performed tubectomy on her. The family court granted maintenance of Rs.500 per child and Rs.1000 towards court expenses to the woman on 28.4.2006 and denied maintenance for lack of documentary proof of her marriage. She appealed to the high court. Justice C.S. Karnan revised the family court order and granted Rs.500 maintenance to the woman from the date of petition i.e. September 2000 till May 2013, arrears to be paid in three months and thereafter Rs.500 every month. The fact of awarding maintenance to the deserted woman is creditable. But the judgement fails on two grounds – one, it is full of flawed reasoning and two, it does not award legally permissible amount of maintenance to the woman.

Is it travesty of justice?

The main issue in this case was to establish woman’s status in the absence of sufficient documentary proofs of marriage. The proof of five years of co-habitation along with birth certificates of children was enough ground to grant maintenance under section 125 Cr.P.C. The woman and the man in question were not married earlier. They had no third party encumbrance. They were of legal age. What needed was to expand the definition of ‘wife’ as in some of the earlier judgements of the Supreme Court. For example, in Vimala (K.) v. Veeraswamy (K.) case of 1991, where the man had denied being married to the woman. There was no documentary proof of their marriage. 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 his 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) the court said that it is not strictly mandatory to provide documentary proof of marriage under section 125 Cr.P.C. as is needed under 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. The judgement did not do so.

Instead, it went on opining (obiter dicta – opinion uttered in giving judgement) on valid marriage, sexual behaviour, and validity or otherwise of registration and host of such matters. In other words, the reasoning of the judgement is based on 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 there is a dispute the ‘husband’ in such a relationship has to obtain divorce before he marries a second time! It states: “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…’

Objection my lord!

The court declares the woman in question ‘wife’ and the man ‘husband’ in an 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 marriage and divorce as also of the 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 legal divorce it will require some documentary proof of a marriage. In one sentence documentary things like registration is trashed and in the next its requirement is stated.

* Due to this conflicting and contradictory statement it 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 marriage absolutely 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 the role of moral policing. This attitude hampers the autonomy and privacy of citizens which is a pre-requisite of democracy. Such ideology cannot ensure women’s rights in the end, though it has been the intent of this judgement.

* 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 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 are ever increasing. Only liberalism can help to create responsible sexual relationships among the youngsters. The opinions in the judgement are not conducive for creating such milieu in the society. For the sake of protecting women’s right to maintenance, other broader democratic rights—of which women are an integral part, cannot be flouted.

* 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.

* The lower courts depend on the judgements of the high courts. Therefore, the high court judges are expected to exercise greater discretion. There is a tradition among judges expressing their perspective while delivering judgements.

This judgement could have done the following:

* Could have ascertained whether the maintenance paid for children is applied from the 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 the judge should have commented upon this aspect.

* Could have increased the limit of maintenance by sighting amendment of 2001 to Cr.P.C.125 wherein the limit of Rs.500 was lifted. Do the high court judges, not only in this case but in many other cases lack knowledge of this amendment or, they do not want to interpret the law in favour of the disadvantaged? 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’.

The road ahead…

Finally, we have to understand ‘maintenance’ is one side of the coin of women’s secondary status in patriarchy. We need to revive campaigns such as the one initiated for the rights of deserted women by Vijaya Chauk in 1990 of Dhule district in Maharathtra; a 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, right to 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 like these from the point of view of the feminists and the democratic rights of women.

Verdict: Progressive or regressive ?

Two days after he delivered the judgement, which evoked disapproval and criticisms from unpredictable quarters, including on social media, Justice C S Karnan said comments should not be made without fully understanding the verdict.

In a clarificatory order, which would be part of the judgement, the judge said “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 religious and customs and rites among the various communities.”

The writer is a social activist and a free-lance writer

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