Thursday, June 27, 2013

Mr S. Gurumurthy on “Mating as marriage” judgement of the Madras High Court.

Two excellent articles written by Mr S. Gurumurthy on a recent judgement by Justice Karnan of the Madras High Court are re-produced below from The New Indian Express dot com. The judgement pertained to the maintenance claimed by a woman in a relationship. In his decision to justify maintenance to be given to the woman who was not legally wedded, the judge claimed that mating is enough to sanctify a marriage and that tying of Mangal sutra and other rituals are not necessary as they are only religious customs and are done for society's satisfaction. This is typically the so-called "rational marriage" concept of Karunanidhi. Mr Gurumurthy has challenged this opinion and has reasoned out well how mating does not mean marriage and how this judgement goes against the legal parameters of marriage in other communities. In this context let me point out some views from Tholkappiyam, the old Grammar book of the sangam Age.

Tholkappiyam is not just about semantics of language but it also explains the culture and habits of the Tamils of yore. In the case of marriage, it does talk about 2 types namely "KaLavu" and "KaRpu" which can be roughly translated as love marriage and arranged marriage.

In KaLavu, the connection between the couple came by 'accidental meeting' when they met each other by 'destiny' or 'divine force'.  Once they started meeting repeatedly, their love was gradually made known to specific people like friends and 'Brahmins' . Why Brahmins? It is because a Brahmin, with his knowledge of sastras could say whether such love was okay or could get acceptance from the parents. Finally if they were wedded without the consent of the parents, it did not necessarily happen with usual formal rituals.  After marriage, the status became "KaRpu" – meaning loyalty and fidelity - both of them used to discharge their duties and responsibilities as Husband and wife. There is no question of deserting the wife anytime after marriage.

In this context there is a sutra in the chapter titled "KaRpiyal" of Tholkappiyam which says "mElOr muRaimai nAlvarkkum uriththE" (Meaning:- The rituals applicable to the higher varnas became applicable to all the four varnas). 

It is again said in this chapter "mElOr mUvarkkum puNarththa karaNam, kIzOrkkAgiya kAlamum uNdE" (Meaning :- A time came when the marriage rituals followed by the first three varnas became applicable to the lower varna also). These two sutras indicate that marriage ceremonies were followed by the first three varnas. This was interpreted by Dravidian thinkers that the fourth Varna was deliberately left out by the three varnas.

Yet another sutra shows what exactly happened that gave rise to the marriage rituals become applicable to the fourth varna much later. That verse gives a direction to how to view the present judgement by Justice Karnan. This sutra says "Poiyyum vazuvum thOnRiya pinnar Iyar yAtthanar karaNam enpa" (Meaning:- It is said that sages recommended marriage rituals after falsity and sins / mistakes crept in).

An analysis of these verses done by Mu. Raghava Iyengar lends excellent insight into human nature and development of rules when the ethics were given a go by. This analysis says that initially in the hilly tracts (KuRinji) there was scarce population /  less habitation but more scope for secretive meeting between the couple in love. Love marriage was common in this region of Tamil lands which was not sanctified by the presence of relatives. However the man in love adhered to the responsibilities as a husband and took care of the wife and his kids. So there was no need for marriage vows and rituals and a gathering of relatives and friends that would act as a compelling evidence for their relationship.  But in course of time falsity (poi) and sins (vazhu) started coming up with man deserting the wife and kids. It was under that circumstance, the sages recommended that they too must follow marriage rituals. The last quoted verse says that.

Love marriages were accepted even though they did not have the acceptance of parents, mainly because it was thought that the coming together of a man and woman was by destiny and that they would discharge their duties as husband and wife. But when cheating and desertions started happening, the elders have thought that by bringing in the element of compulsory sanctioning by specific rituals and marriage vows, the couple could be made to behave well and not falter. This is as per Thilkappiyam that reflects the culture of the land that existed 2000 years ago.

This shows that marriage rituals worked as a compelling commitment to the couple to behave well. Here comes a doubt whether the same reason was there for the first three varnas also. If so, it shows that the top three varnas had not 'behaved' well for long before the fourth varna started faltering. This cannot be so, for, the three varnas were following the Brahma or Prajapatya vivaha of arranged marriage. Kovalan – Kannagi marriage is one example and they belonged to the third varna. Theirs was Prajapatya marriage.


In the case of the hill tribes who were cut off from these three varnas who lived on plains, the rituals were not initially followed but taught to them after cheatings were reported in their marriages. Thus we find that the development of the idea of marriage ritual was more to do with inculcating a sense of commitment and responsibility for the partners. Only after such commitment is ensured, they entered into physical intimacy. Physical intimacy without such commitment is not marriage. Justice Karnan thinks otherwise.

- Jayasree

Related articles from this blogspot:-

Mr S.Gurumurthy on CJ's opinion on live-in-relationship

SC on living-in-relationship – where Law is not the same as Dharma.

Insulting Hindu religious belief by a reference to Radha-Krishna



'Mating as marriage' judgment is a shocker


S Gurumurthy

21st June 2013 07:18 AM


The judgment of Justice C S Karnan of Madras High Court equating live-in relation with marriage has made global news. This is how the Washington Post [18.6.2013] has headlined the judgment: "Indian court rules that any couple who sleeps together is considered married". Even by the ultra-modern US standards, the judgment is a shocker.


To state Justice Karnan's judicial thesis in his own words, "If a couple chooses to consummate their sexual cravings, then the act becomes a total commitment with adherence to all consequences that may follow." That is, mating means marriage. But, 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.


Look at the facts of the case. A lady was in a live-in relation with a man for years and also had two children with him. The man, as most men in wrong relations do, left her high and dry. The hapless victim approached the family court for maintenance. In 2006, the family court ordered a monthly allowance of Rs 500 for the two children and Rs 1,000 as litigation expenses. It could not order maintenance to the lady as there was no proof of valid marriage in law. The case came in appeal to Justice Karnan.


Noting that the lady was a spinster and the man was a bachelor before they began their live-in partnership under the same shelter and begot two children, the Judge ruled that their marriage was completed by mating long enough. Lawyers often say hard facts produce bad rulings. The judgment of Justice Karnan bears testimony to the dictum. The hard facts of the case that confronted the Justice probably led him to lay down bad rule. The legal objection to Justice Karnan's judgment, which is right, is that he has added a new section to law of marriage instead of recommending to legislature to make an amendment deeming live-in relation as marriage for alimony.


It is also not clear whether Justice Karnan was told that in October 2010 the issue whether alimony is payable where live-in relations break has been referred by two judges of the Supreme Court to a larger Bench, and as late as March 30, 2013 no such Bench has been constituted []. But, the most objectionable part of Justice Karnan's ruling, which is lost in the legality discourse, is the way it trivialises the role of marital customs which are mandatory in law for valid marriages.


Justice Karnan says: Formalities such as tying mangala sutra, exchange of garlands and rings, and circling around matrimonial fire are not a must for valid marriage but, "to comply with certain religious customs" and "for the satisfaction of the society." This is uncalled for and even dangerous. To deem live-in relations as marriage, what constitutes a valid marriage need not be trivialised. It calls for some profoundness to understand why law mandates social customs for valid marriages and what is the place of customs and the role of society in marriages. The society, which Justice Karnan adverts to, is an invisible mechanism, yes. Still it overseas the individual and the family.


The family is the primary institution that socialises individuals with time-tested mix of duties and rights. Marriages are the foundation of conventional family and society. Customs and rituals legitimatise a marriage in the society's eye. The combine of family and society, not the law or State, creates and sustains customs and rituals. Also law cannot bring about marriages. It can only terminate them.


Courts cannot admit a petition to make marriage. They can only accept a petition to break it. However unacceptable it is to progressives, conventional marriage continues to be the prerogative of the family and the society in which the family functions.

See how marriages work in 'modern' India and in West. According to a latest research [dt 16.8.2012] by Human Rights Council UNICEF, 90 per cent of marriages in India are arranged. And globally 55 per cent. The global divorce rate in arranged marriages is 6 per cent. In India, one per cent.


According to a PEW Centre research [June 19, 2012] 86 per cent of the Indians in the US marry within their own community. Conventional marriages are arranged or approved by families. Where the marriage, which is a family bond and at once a social institution, is usurped by law and turned into a pure legal contract the consequences have been grave. The best example is how, in the US, where arranged marriages are anathema and their number less than a tenth, over half of the first marriages and two-thirds of the second marriages and three-fourths of the third ones end in divorce. With the institution of conventional marriages and families disturbed, almost half of American families are 'fatherless', single parent or unwed households and 41 per cent of the children are born for unwed mothers.  It is universally known that arranged marriages greatly reduce divorce rates. A report in USA Today newspaper [23.5.2012] citing a research says that arranged marriages could lower American divorce rates. The reason is obvious. Socially sanctioned marriages can withstand the pressures of marriage and avoid divorces. Soaring divorce rates and growing numbers of single-parent households that adds to the social security outgo of the US Government compel researchers in US to suggest it is time to rethink the Western approach to marriages.


Harvard academic Dr Robert Epstein has studied arranged marriages in Indian, Pakistani and Orthodox Jewish traditions. His work finds that feelings of love in un-arranged matches begin to fade by as much as by half in 18 months, whereas the love in the arranged marriages tends to grow gradually, surpassing the love in the un-arranged marriages at about the five-year mark. And ten years on, the affection felt by those in arranged marriages is typically twice as strong. Dr Epstein believes westerners confuse love with lust, but other cultures look for more than just passion. Adding that in the West marriages are easy to get out of, Dr Epstein points out that, in arranged marriages, the commitment is very strong. 'They get married knowing they won't leave. So they don't run away when times are harder but come closer.'[Daily Mail, UK, June 19, 2013]


Japan which followed the West in the last half of the last century seems too to be U-turning. The Telegraph UK reports [April 12, 2012] that in Japan where arranged marriages were universal till 1945, fell to 60 per cent in 1960 and to 30 per cent in 1990, they are making a come back now - to over 40 per cent.

Conventional society and communities are a reality in India. Families, not individuals, are components of the society. The experience of the West has shown that it is easy to undermine the society, but difficult to create it. In the 20th century, the Euro-West undermined the society first by emphasising on individual rights. The theory of methodological individualism that dominates Western sociology and economics virtually replaced conventional society with the State. Its exponents like Karl Popper declared that is "no such thing as society" -- a remark which was endorsed by a popular political leader Margaret Thatcher. But very soon the very emphasis on individual rights sans duties undermined the families.


Western thinkers hardly realised that conventional families will not exist without support from the conventional society. That's why conventional marriages which have social sanction fail less. The way the judgment of Justice Karnan trivialises the satisfaction of the society is an invitation for marital chaos.


The discussion on the judgment will be incomplete without reference to how Srimad Bhagavatam describes the advent of Kali Yuga [Dark Age].  Dr. Epstein says in the West, physical attraction is important in marriages, but warns people must distinguish lust from love. He adds strong physical attraction is very dangerous and it can be blinding. And Bhagavatam says that "in Kali Yuga mutual attraction will become the sole consideration in marital relationship. Skill in love-making will be recognised as the chief excellence in man and woman [Skanda XII.2.3]. Mating will be looked upon as marriage [XII.2.5]." At the peak of the Dark Age, it says 'sexual relationship will be recognised as the only relationship'.


The West, which had held itself out as the model for the Rest, seems to be realising now that it needs to get out the Dark Age marriages described in Bhagavatam. Should we then risk equating mating with marriage?



Live-in relations and alimony


S Gurumurthy

26th June 2013 07:24 AM

The ongoing debate on the Madras High Court judgment ordering alimony to a victim of desertion in live-in relation is more like the legendary six-blind-men-and-elephant analysis. The discourse has got reduced to asking whether it was not just to order alimony to an unjustly deserted woman. The critical point missed is that when a court renders a judgment, it sets legal precedent for all cases of desertion in live-in relations. This is what distinguishes court of law from panchayat which does case-to-case justice for a homogenous village or community. India is neither a homogenous village nor one community. It has separate marriage, divorce and alimony laws for Hindus, Muslims, Christians and Parsis, besides a special law mainly for cross-religious and community marriages. A court judgment on alimony in live-in cases should factor in all religious laws and the special law while ordering alimony for non-marriages. A court of law is mandated to do justice by strictly observing the law. Law is unjust at times. If the law does permit alimony only when legal marriage breaks, the court impelled to do justice to the victim of live-in relations should exercise high judicial wisdom and do justice without harming the matrimonial law which sustains stable families.


It does not need a great legal scientist to explain why live-in relation does not equal legal marriage. A lawful marriage can be enforced by asserting conjugal rights. It cannot be terminated unilaterally by either party (except in Islamic Shariat law by the husband). But live-in relation is voluntary sexual union founded on mutual attraction, not on mutual agreement. Neither partner can enforce the live-in relation, but either of them can unilaterally walk out of it with ease. Imagine, instead of the man, the woman had left the live-in relation and joined some other man, could her live-in male partner have had any remedy like restoration of conjugal rights as in a legal marriage? Is there any doubt now that marriage is a mutually enforceable bond but live-in relation is unilaterally terminable affair? How then could indulging in sex and begetting children alone make live-in affairs equal to marriage?


Yet, obviously moved by the distress of the deserted lady, Justice Karnan fell into a series of legal errors to justify the noble objective of giving alimony to her. First, to ensure alimony to her, he wrongly equated her non-binding live-in relation to binding legal marriage. Next, to recognise long live-in mating as equal marriage, he declared the rituals which validate marriages under diverse religious laws as irrelevant. And in upgrading live-in relation to the status of legal marriage, the judge has actually downgraded legal marriages to live-in mating by erasing the legal difference between the two. In the process he has outlawed all laws of marriage for doing apparent justice. While the legal premises of the judgment are complex enough, to complicate matters even more, in the case before the judge, the deserted live-in woman partner is a Hindu and the deserter is a Muslim. It is cross live-in relation. Had they married legally either the man would have become a Hindu to be governed by Hindu law or she would have become a Muslim to be governed by Shariat law or their marriage would have been registered under the special marriage law to be governed by it.


Some ask why not regard live-in relations as Gandharva Vivaha. First Gandharva Vivaha, a Hindu concept, will not work between a Muslim man and Hindu woman. Also the Hindu law describes — not prescribes — eight types of marriages including Gandharva Vivaha. Of these, only four types, namely, Brahmana (giving the girl with dowry to an educated bridegroom), Daiva (giving the girl to a priest during the performance of religious ceremony), Arsha (giving the girl after receiving dowry from the bridegroom) and Prajapathya (giving the girl with respect and blessing to a bridegroom) were considered proper for all. The other four, namely Asurika (marrying a girl against her will by giving wealth to her family and kinsmen), Gandharva (voluntary union of man and woman out of sexual urge), Rakshasa (abducting a girl and marrying her forcibly) and Pisacha (stealthily seducing a sleeping, intoxicated or mentally ill girl) were regarded as improper for all. So if courts can recognise marriage in the Gandharva form, then why not its Asurika, Rakshasa and Pisacha forms also? Anyway, the Hindu Marriage Act does not recognise the last four forms. Such suggestions may open a Pandora's box. Islamic Sharia applicable to Shia Muslims permits Muta marriage, a temporary marriage valid for 30 days at the end of which automatically the 30-day husband and wife become strangers. Imagine Shia Muslims beginning to resort to Muta marriages. Is it not better then to avoid recalling such forgotten traditions to answer modern problems?


It needs dispassionate analysis. Alimony, as the law knows, arises when a legal marriage ends in separation. But the judgment orders marital alimony where there was, in law, neither marriage nor separation. The judge also ignores the obvious fact that marriage laws in India are not common, but separate for different religious communities. The Hindu Marriage Act (1954) applies, besides to Hindus, to Sikhs, Buddhists, Jains and to all, other than Muslims, Christians and Parsis. The Parsi Marriage Act (1936) applies to only Parsis. Christian Marriage Act (1872) applies only to Christians. For Muslims, the exclusive Islamic Sharia law applies as if it is the legislated law. These laws apply for couples belonging to the same religion, not to others. Hindu marriage law validates marriages performed according to Hindu customs. So do the Islamic, Christian and Parsi marriage laws for Muslims, Christians and Parsis. But, registration under the Special Marriage Act makes non-ritualistic and cross-religious marriages valid. It means that except marriages under the Special Marriages Act, marriages are valid only if respective religious rituals are observed. Yet Justice Karnan's judgment virtually dismisses the mandatory rituals and customs stipulated for marriages as irrelevant. He does not ask why the couple did not register their live-in relation under the special marriages law which needs only two witnesses and notice to the society, not its consent.


Like on marriage, so on divorce and alimony also there are divergences among different marriage laws. Traditional Hindu law did not provide for divorce. But the legislated Hindu Marriage Act altered the traditional law and provided for divorce on specific grounds or by mutual consent. And in every case alimony payment is determined by court. The Parsi law allows divorce including by mutual consent and court-determined alimony. Till 2001, the divorce law applicable to Christians (Indian Divorce Act 1869) had heavily discriminated against female spouses. This was corrected, though only partially, only as late as in 2001. Till then, Christian marriages were not terminable by mutual consent and alimony to a Christian wife was capped at one-fifth of the husband's income, which was removed only in 2001.


Under the Islamic Shariat law, a Muslim husband can divorce his wife by pronouncing "talaq" thrice, without giving any reason. But his wife cannot ask for divorce unless he had granted her that right. The Dissolution of Muslim Marriages Act 1939 extended the grounds on which Muslim women could seek divorce. But in Islamic divorces, including through triple talaq, alimony for the divorced Muslim wife is limited to only three months (three menstrual cycles). When in the case of one Shah Bano (a 62-year-old Muslim divorcee) the Supreme Court directed that she was entitled to alimony like any non-Muslim, the Muslim community protested against it as an invasion of the Islamic Shariat. It became a high-voltage political issue in the 1980s and the government had to pass a law to overrule the Supreme Court judgment and legislate Shariat principles of alimony. So, if the couple before Justice Karnan were legally husband and wife under Islamic law, the lady would have got only three months' maintenance. Could a woman partner in a live-in relation with a Muslim male get better benefits than a legally wedded wife? Will the alimony continue in case she enters another live-in relation or marries? A court decision, which is a legal precedent, should hold good all such situations. Otherwise it is only a panchayat verdict.


With the marriage, divorce and alimony laws of India lacking commonality, how then could the court have done justice to the deserted lady? Could it not have ordered relief to the victim, construing live-in relations as a quasi-contract or on common law principle of justice, equity and good conscience, thus keeping it outside the matrimonial domain? In equating sex with marriage and vice versa the more desirable options disappeared from the court radar. After doing justice specific to the case, the judge could also have suggested a separate law to protect the victims of live-in relations in future. And he could have reinforced the need for a common civil code for all religious groups in the country which is the ultimate answer for the contemporary problems. In the interest of the sanctity of legal marriages, which is not just the equivalent of sex and includes other legal and moral obligations, this exotic judgment deserves to be overruled.


S Gurumurthy is a well-known commentator on political and economic issues.





Raghu said...

The observations, both by you and Mr Gurumurthy, are correct. I feel the learned people should file a case for a reversal or appropriate modification of this judgement to include respect for traditional customs and practices of the land.

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