The infamous Madras High Court judgment in Aysha v. Ozir Hassan[1] which
lead people to question the intention of the Madras High Court when it stated
that if you enter into a sexual relationship with someone you are considered to
be married has been finally answered in a Special Leave Petition (“SLP”) by the Apex Court. The SLP was
filed by someone not a party to the judgment delivered by the Madras High
Court.
To understand the case, let’s look into the brief facts of the
case. The petitioner in the case, Aysha, had filed a maintenance suit in the
Family Court at Coimbatore, where she claimed for a monthly maintenance for a
sum of Rs. 5,000 for herself and her two minor children. The petitioner stated
that the respondent herein had married her on September 16, 1994 as per Muslim
Customs. Immediately after the marriage both had led their marital life at
Coimbatore. Out of wedlock, she gave birth to two female children in 1196 and 1999
respectively. In the year 1999, the respondent (Husband) left the house and
deserted the petitioner and their children. Thereafter mediation was conducted
by the panchayat for a reunion which was in vain.
The respondent on the other hand contended that the marriage was
not valid, firstly denying the fact he even married the petitioner and later contending
that such marriage was not maintainable as it was not recorded in the nikah
book as per the Muslim customs. He also denied that the children were born out
of him.
The family court at Coimbatore, after looking into the facts and
the evidence provided by both the parties, came to the conclusion that the respondent
was infact the father of the children and thus the children should receive the
due maintenance as per the law. However, the court observed, that since the
marriage could not be proved by any documentary evidence, the petitioner, Aysha
would not receive any maintenance.
The petitioner, Aysha thus approached the Madras High Court
against the order of the family court in a revision petition and contended that
the Family Court had erred in its decision by holding that the petitioner was
not the wife of the respondent solely on the basis of any documentary evidence
and non-registration of the marriage in the nikah book. The petitioner went on
to state that major evidence such as the signature of the respondent on the
declaration and consent form as then husband goes on to prove that he is in fact
the husband of the petitioner.
After hearing the contentions of both the parties, the Madras High
Court ruled that a valid marriage does not necessarily mean that all the
customary rights pertaining to the married couple are to be followed and
subsequently solemnized. In the present case, customary formalities were not
followed, however, the hospital records go on to show that the respondent was
the father of the second child through the “Live Birth Report” submitted as
evidence in the Court. The Court looked into several aspects and observed that
both the petitioner and the respondent have not been by any means disqualified
from marriage and in the absence of any encumbrances or the involvement of any
third party rights, the marriage cannot be deemed illegitimate.
The Court noted that since both the petitioner and the respondent
led their marital life under the same shelter and begot two children out of the
wedlock, the children born out of such a relationship are legitimate and the
wife is also a legitimate wife. The Court further observed that if a woman aged
18 or above has a sexual relationship with a man, aged 21 or above, and during
the course of such relationship, if the woman becomes pregnant, she would henceforth
be treated as the wife and the man would be treated as the husband. Even if the
girl does not become pregnant after having such sexual relationship with a man
but if there is strong documentary evidence to show the existence of such
relationship then also the couple involved in such acts would be termed as wife
and husband. The Court further went on to state that even 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. He could not marry a second time without getting such a decree as it
had been established that the sexual relationship had existed between them and
consummation had taken place.
Thus,
the respondent - husband was liable to pay maintenance to all three, Aysha and
her two kids.
Now
the SLP filed in the Supreme Court was strictly on the point made by the Madras
High Court observing that “a valid marriage does not necessarily mean that all
the customary rights pertaining to the married couple are to be followed and
subsequently solemnized”. The petitioner in the SLP stated that such
observations are not legally sound and go against the institution of marriage.
Answering
this, the Supreme Court held that, the observations made by the Madras High
Court are pertaining to the facts and circumstances of that case only. The Apex
Court relied on several judgments fortifying the view that if a man and woman
are living together for a long time as husband and wife, though never married,
there would be a presumption of marriage and their children could not be called
to be illegitimate and neither can the wife be illegitimate. It was held that the
observations made by the Madras High Court are not in universal in nature and
are restricted to the facts of the case.
In
my opinion, it is necessary for us to understand the facts of each case
individually. When it comes to maintenance laws, it is important to help and
understand the situation of the victimized so that an appropriate action can be
taken. In the present case, there was enough evidence both documentary and
through witnesses produced that the petitioner and the respondent stayed
together and shared the same shelter. It’s true that there have been plenty
cases where the law has been misused by either party; however, the present case
does not seem to fall under that category merely because there was evidence to
show that the two not only stayed together but also that he consented and duly
signed the documents at the hospital. Observations made by the Madras High
Court if read individually do sound absurd however, we have to read it entirety
and not just pick and choose certain excerpts and raise unnecessary hype.
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