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Tuesday, June 18, 2013


Disclaimer 1: As other articles have noted, reportage on the Hon’ble Chennai High Court’s ruling leaves much to be desired. The actual decision is plausible in the context in which it is delivered, and much of what is reported appears to be obiter dicta anyway. So it's fine if you enjoy the occasional spelunking expedition - it doesn't mean you're married.

Disclaimer 2: I respectfully maintain that the observations in the judgment remain cause for concern. Not because of the consequences for frisky adolescents, adulterers, rape victims, commercial sex workers, their clients, the LGBT community, incestuous relationships, gold diggers, honey traps or divorce lawyers. There is no danger of the judgment being generalised, not least because it is infeasible: what evidentiary value would a one-sided declaration of an extant sexual relationship, barring medical or corroborative evidence, even have before a court? What concerns me is the logical flaw inherent in the judgment, which in turn reveals a philosophical approach to marriage and sexual intimacy somewhat out of sync with 21st century reality.

This post is my attempt to outline that concern.
Today's Logical Fallacy is: False Cause

One of the goals of marriage is to grant social sanction to sexual relationships. This is supported by the law in India, in as much as a man can sue for restitution of conjugal rights from his wife (and refusal to comply with such a decree is valid grounds for divorce), or in as much as adultery is treated as an offence by a stranger in usurping such conjugal right from the (exclusively entitled) spouse. One learned judge, however, performs an illicit reversal (Heh) upon this premise: he concludes that because marriage implies sex, sex implies marriage. That’s the logical flaw. for details, and enjoyable digressions : ]

That is a very conservative position (Heh). I’m unsure whether to call it patriarchal or misogynistic – the verdict, after all, does aim to help the lady in question; at a minimum, though, I think I may call it “essentialist”. And my problem is that, in the 21st century, marriage is definitely not of essence to sex; to a lesser extent, sex is also not essential to marriage – that is the philosophical assertion here, and one I feel we ought to contest. 

I believe much of our historical preoccupation with the consummation of marriage relates to establishing paternity. As a professor of mine at law school once remarked, maternity is a (biological) fact, but paternity is merely an assertion – albeit a sociologically significant one. It has implications for the transmission of property from generation to generation. (Short version: families needed heirs, but only from an approved marriage, hence they had to both ensure sexual contact between suitable couples and restrict such contact to that couple.) Not that society was ever spectacularly successful in this effort, but various defenses built up against the resultant complications (most notably, the concept of legitimacy).

Today, technology has undermined all of those assumptions; none of these linkages must flow as a matter of course. Contraception means you can have sex multiple times with multiple partners – and no childbirth. IVF and Implantation mean you can have children without having sex - theoretically even without parents (in the sociological sense; the biological material has to come from someone). DNA testing means you can establish parentage irrespective of multiple sexual encounters – in fact, we have reversed the proposition, and use the child’s DNA to prove that the parents' identity, even against the claims of a parent in denial!

In this context, it seems particularly Middle Ages to assert that sex must inevitably carry implications of matrimony and childbirth. The reason our discourse includes labels such as "premarital" and "extramarital" sex is precisely because we can distinguish between the physical (and sometimes emotional) engagement that is sex, and the legal (and sometimes emotional) engagement that is matrimony. “Consequently, if any couple choose to consummate their sexual cravings, then that act becomes a total commitment to...” nothing very much, actually (especially if they remembered to use protection). If only the State would get over this unhealthy fixation about the sexual cravings of its citizens (at least, we're told it's unhealthy)...

This compulsory linkage between marriage, sex and childbirth unfortunately tends to obviate, even invalidate, many conditions and distinctions we find in our society. What does it mean for a married but childless couple, especially those who are childless by choice? What does it mean for married but asexual persons? What does it mean for an unmarried but sexually active person – or for that matter, a married person sexually active outside their marriage? To have a legal pronouncement that implicitly denies individuals the choice of where to fall along this spectrum (or rather, these overlapping spectra) suggests either blindness to, knowing unconcern for or active disapproval of these nuances. Any of these would be a retrogressive step, since we have increasingly seen from the Courts a willingness to embrace such differences, as for instance in the Delhi HC’s reading down of Sec. 377 IPC.

As to the case itself, the same verdict could be sustained on far more tenable legal grounds: quasi-contract. The Hon’ble Supreme Court had decided similar cases as per this reasoning: a LONG ENOUGH live-in relationship where each party has CONDUCTED THEMSELVES AS IF MARRIED, both to each other and to third parties, is sufficient to establish marriage even in the absence of solemnisation or registration. This would be particularly true for those covered by a personal law that treats marriage as a contract.

The relevant principle is simple: if you procure any benefit under a promise of future conduct, a relationship in the nature of contract obtains, and you must then perform your promise or compensate for its breach. The absence of a written or oral agreement is no deficiency, as the contract is proved by (or, alternately, the obligation stems from) the conduct of the party from whom you procured such benefit, in as much as such conduct only took place consequent to your promise and differed from what that party would otherwise have done. Of course, the typical remedy is compensation or restitution, and not to insist upon the specific performance of the contract.

An implied contract of marriage presents some difficulty in that regard: the Court can hardly force an individual to marry (or acknowledge a marriage) where no legally recognised marriage was conducted, but it is also impossible to compute suitable compensation for breach of such a promise. Restitution - to restore someone to the condition they would have been in had they taken no action - is impossible. Indian law solves this through a stringent measure: we treat sex obtained under false promise or pretense of marriage as non-consensual and tantamount to rape. The man could be confronted with a straightforward choice: you are either her husband, with all its attendant implications including maintenance or alimony – or a rapist, and must go to jail.

Note that the punishment is for the deception, which vitiates the consent, and not for the sexual act per se. If there is no deception, there is no punishment. Even with social norms, mores and pressures being what they are, Indian law does not make consensual sex between adults illegal - until now. To read this judgment, though, one would conclude that having sex is a crime, and marriage the punishment - and, as the joke goes, it's a life sentence. 

I doubt I am alone in objecting to such an imposition. Just as I doubt that I am alone in having violent philosophical disagreements with the assertion that sex + rituals = marriage (Rituals optional).

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