The Madras high court’s judgment on June 17, which decided an alimony dispute between an unmarried couple who have two children, took over the cerebral cortex of Twitter and other social media spaces a few days ago.
Nothing animates conversation like sex, and since India has so little of it -- the conversation about sex, that is, not the sex per se -- we can be forgiven for indulging in some excited chatter and a lot of jokes.
With respect to the case at hand, the judge made a perfectly sound decision requiring the man to pay alimony to the woman he had lived with and had children by, even though he had moved on from the relationship. The general idea is solid.
The judgment says that if you have lived together as sexual partners long enough, and have children, you can’t just walk out without honouring your financial obligations. Makes eminent sense. If he had left it at that, there would be nothing to talk about.
The problem lies in a few startling sentences in the judgment that seem to struggle to define what constitutes a relationship significant enough to engender financial obligations. One might decide on the basis of a minimum amount of time spent in that relationship, or assets and other resources jointly held.
The judge opines, however, that consequent to attaining majority and freedom of choice, “if any couple who choose to consummate their sexual cravings then that [sic] act becomes a total commitment with adherence to all consequences that may follow”; and conversely, if “their conjugal rights for sexual consummation had [sic] not been fulfilled, then such a marriage is deemed to be a failure, void or lapse”.
This lays the groundwork to say that “legal rights as applicable to the [sic] normal wedded couples will also be applicable to couples who have had sexual relationships which are established”.
Leaving aside the fact that it’s unclear whether the word “established” here refers to proof or to some significant amount of time, we have to assume that the judge is not in fact saying that every sexual act implies a marriage, because that’s just crazy, right?
But you would be forgiven for thinking so, because he then says that “after such a sexual relationship, if both decide to separate due to difference of opinion, the ‘husband’ cannot marry without getting a decree of divorce from the Court of law against the ‘wife’.”
The judge writes that the social rituals and conventions marking marriages (tying <I>thalis, </I>walking around a sacred fire, exchanging rings at an altar before a priest, having a <I>nikkah</I>) are just that -- conventions.
Most liberals would agree that this is a refreshingly progressive view. Then he ruins it all by clarifying, the next day that his judgment doesn’t mean to denigrate marriage or religion, which nods to the exact opposite of progressive and is familiar to us from the world of politics, in which everyone is always apologising for hurting people’s sentiments.
It is perfectly clear that the point of the order is to uphold the rights of an unmarried woman, who has children with a man, to receive maintenance should the relationship end. Hats off to Justice Karnan for that.
The problem is that while his judgment and subsequent clarification seem keen to uphold these rights, they are founded on unnecessary and extremely dubious rational and moral justifications.
It has taken us a long time to be able to say, in India, that an unmarried sexual relationship is not a criminal offence. Why now drag us backwards by implying that the reason it’s okay to have premarital sex is that having sex with someone is just like being married to them? It is taking us a long and bloody struggle to establish the idea of individual autonomy and agency for women. Why undermine that effort by recasting dignity in marital terms all over again?
In other words the Madras high court, in a good-hearted attempt to strengthen the rights of women, justifies those rights by putting them firmly back in the structure of patriarchal thought. Justice Karnan does not say that unmarried cohabitation, which is today perfectly legal, also implies certain responsibilities that must be honoured. He implies, instead, that cohabitation with a sexual partner is, after all, marriage, and that is why it is okay.
The upside of doing this is that more people relate to the familiar and widely accepted social convention of marriage, and thereby the woman’s interests within that setup. But that isn’t worth the downside, which is a slew of assumptions that we desperately need to dismantle -- that marriage does and should confer legitimacy and social and legal status on a woman, that getting married is still the Holy Grail of womanhood, and that your sexual situation should determine your position in society.