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 [Indiatoday.in]. 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?
S Gurumurthy is a well-known commentator on political and economic issues.