CAIRO - In a shocking ruling, an Indian high court has changed the basis of a lawful marriage, saying that a sexual relationship between a man and woman consummates marriage, terming the religious rituals and marriage solemnization as only customary.
If a woman aged 18 or above has a sexual relationship with a man aged 21 or above, and during the course of such a relationship becomes pregnant, she would henceforth be treated as the wife, Justice C S Karnan of Madras High Court was quoted by The New Indian Express on Tuesday, June 18.
Even if the woman does not become pregnant after having such a sexual relationship, but if there is strong documentary evidence to show the existence of such a relationship, then also the couple involved in such acts would be termed as wife and husband, the judge said and allowed the petition.
The judge order was related to a petition filed by a Muslim woman, who sought maintenance for herself and her two children from her estranged husband
According to the petitioner, she married in 1994 as per Muslim customs and gave birth to two girls in 1996 and 1999.
After giving birth to the second child, she said that the husband deserted her and refused to pay for its day to day expenses denying their marriage.
Moving to the Family Court in Coimbatore to seek maintenance, the court went through the hospital records deciding that the two children were legitimate and entitled to Rs 500 per month each as maintenance.
However, she said that the petitioner, who could not produce any legally valid document to her marriage, was not a legitimate wife as the marriage was not registered.
Muslims account for 160 million of India's 1.1 billion people, the world's third-largest Muslim population after those of Indonesia and Pakistan.
Sexual relations are allowed only among the married couples. Sex outside marriage is not allowed in Islam.
As for the children resulting from outside marriage, the Prophet's words apply here: The child belongs to the marriage bed.
Making unprecedented case, Justice Karnan concluded that this is indeed a valid marriage because the two lived like husband and wife under one roof, and also begot two children.
If the couple chooses to consummate their sexual cravings, then the act becomes a total commitment with adherence to all consequences that may follow, he said.
The court said marriage formalities as per various religious customs or the registering of a marriage were only to comply with religious customs for the satisfaction of society.
"Illegitimate relationship does not arise in this case, he said.
Marriage solemnization is only a customary right and obligation, but not a mandatory one, he added.
Therefore, the usual marriage formalities such as tying of thaali, exchange of garlands, exchanging rings and circling around matrimonial fire pit or registering at a registration office, are to comply with certain religious customs and for the satisfaction of the society," he added
Because of their sexual relationship, they had been elevated to the level of husband and wife, Justice Karnan said.
"Therefore, the children born to them are legitimate children."