Pre-marital Sex

PRE-MARITAL SEX

INTRODUCTION:

Indian Law recognises sexual relationship between consenting adults as legal act. Casula physical relationship does not create rights among parties provided the relationship is consensual. Whether or not the consent existed is a question of fact and is determined on case-to-case basis. Courts have time and again drawn a presumption in favour of women, particularly when the woman involved is destitute, ignorant, likely to be taken advantage of. The presumption is not always express, but he degree of rigour with which counter party needs to prove the consent is enhanced. Public exhibits, that is performance of sexual or promiscuous acts publicly, however, attract ire of the courts and the same is punishable. 

CASE LAW RELATED TO PRE-MARITAL SEX:

• Avsha Vs. Hassan (2013) 5 MLJ 31: the petitioner herein and the respondent herein have no encumbrance or other disqualification for solemnizing their marriage as per their customs. For solemnizing marriage, legal aspects are to be placed o higher scale and the customary aspects do not command such a scale. In this case, the respondent has signed in the “Live Birth Report” and given hi consent for a caesarean operation for the birth of the second child and as such, the respondent had openly and officially admitted that the petitioner is his wife/spouse.

• It is disputed that the petitioner has been a spinster before she gave birth and that the respondent was a bachelor before developing sexual relationship with the petitioner. Both of them led their marital life under the same shelter and beg of two children. Therefore, the petitioner’s rank has been elevated as the ‘wife’ of the respondent and likewise the respondent’s rank has been elevated as the ‘husband’ of the petitioner. 

• Therefore, the children born to them are ‘legitimate’ children and the petitioner is the ‘legitimate’ wife of the respondent. This court is of the view that is a women 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 ‘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 the also the couple involved in such acts would be termed as ‘wife’ and ‘husband’. 

• The court said 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 decree as it had been established that the sexual relationship had existed between them and consummation had taken place. 

In some cases, both the bachelor and spinster even after observing all the formalities of their religious customs and solemnization of marriage, are unable to have sexual relationship, as such consummation is deemed to be non-occurring, such a marriage would be referred to as an invalid marriage. What is expected after adhering to normal formalities is the consummation by the union (spouses) which has occurred in the present case.