Couples Who Have Premarital Sex Will Be Considered Married

This is according to a court verdict in a southern state in India where a judge, Justice C. S. Karnan, concluded that the relationship between adult couples who have slept together should be considered legally as marriage. The judge made these comments in an appeal from a woman who was seeking financial support from the father of her two children and live-in partner of five years.


A lower court had previously ordered the man to pay child support but ruled that because the woman was not his legal wife, he did not need to pay her anything. The appeals court judge however, directed the man to pay alimony to the woman in addition to the child support.

The Hindu website reports the details of Karnan's order as follows,

If any unmarried couple of the right legal age “indulge in sexual gratification,” this will be considered a valid marriage and they could be termed “husband and wife,” the Madras High Court has ruled in a judgment that gives a new twist to the concept of premarital sex.

The court said that if a bachelor has completed 21 years of age and an unmarried woman 18 years, they have acquired the freedom of choice guaranteed by the Constitution. “Consequently, if any couple 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.”

The court said marriage formalities as per various religious customs such as the tying of a mangalsutra, the exchange of garlands and rings or the registering of a marriage were only to comply with religious customs for the satisfaction of society.

The court further said if necessary either party to a relationship could approach a Family Court for a declaration of marital status by supplying documentary proof for a sexual relationship. Once such a declaration was obtained, a woman could establish herself as the man’s wife in government records. “Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established."

The court also said if after having a sexual relationship, the couple decided to separate due to difference of opinion, the ‘husband’ could not marry without getting a decree of divorce from the ‘wife’.

Justice C.S. Karnan passed the order on Monday while modifying an April 2006 judgment of a Coimbatore family court in a maintenance case involving a couple. The lower court had ordered the man to pay monthly maintenance of Rs. 500 to the couple’s two children and Rs. 1000 as litigation expenses. The lower court observed that the woman’s wedding with the man had not been proved by documentary evidence. Hence, she was not entitled to maintenance.

In her appeal to the High Court, the woman’s counsel contended that she was legally married and had two children in wedlock.

Justice Karnan said he was of the view that a valid marriage did not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised. In the present case, the woman and her husband had no encumbrance or other disqualification for solemnising their wedding as per their customs. For solemnising a wedding, legal aspects should be placed on a higher scale than the customary aspects. In this case, the man had signed in the ‘live birth report’ of his second child and given his consent for a Caesarean section for its birth. As such, he had officially admitted that she was his wife.

This looks to me like the common law marriage that is obtainanble in many parts of the world. But it is strange that it either does not obtain in India, or the couple did not qualify for it. Lawyers please correct me if I'm wrong, but I always assumed that couples who've lived together for several years are considered legally married?

What I find strange is the judge hanging this on premarital sex, and even where the intercourse is non-consensual. So on the face of it, women who are baby mamas, and have lived with their foot-dragging men for years, can legalize their "marriage" easily according to this law.

But what happens if a man decides to kidnap and rape a woman, take pictures, and then use that to go get the so-called 'declaration of marital status', effectively locking down the woman in an unwanted legal marriage that would take legal divorce to get out of?

I'm guessing this case will go to the supreme court. It needs more clarity in my opinion.