What does marriage mean?

It appears that only a separate page in the thicker edition of a Sunday newspaper could accommodate the debate about the recent ruling of the Madras High Court in the Aysha vs. Ozir Hassan case in all its variegated dimensions. While The Hindu had come out with a scathing editorial [1] on the judgment, in particular on the obiter dicta contained in it that does not have the force of law, it allowed about 4 days for the issue to be played out in its other pages [2, 3, 4, 5, and 6]. I give below a few of my observations.

Are you married even after you deny that you were married? The judgment says, yes. Are you married after you list the mother of your children in your ration card? Yes. You, if a male, admit to having children (females do not have to admit to having children! On this, later), then you are ipso facto married.

What if you are mentioned as the father in the child’s birth certificate? Are you married then? The judgment appears to be silent on this. Perhaps the details of the case led the judge to talk about ration card and not birth certificates. But, a question arises – if the judge was confining himself to the details of the case, why the expansive obiter dicta, which is the culprit in most discussions?

Now, patriarchy is the punching bag in all these discussions, and by implications it is the men. This is OK with me. Therefore, I will not question the assertion that the judgment has “reinforced patriarchal notions by linking sexual relationships with marriage,” leaving aside for the moment women’s role in sustaining this social structure.

Here, a small discourse on patriarchy. In the set of articles, I also read “many unwed mothers … became second class citizens simply because they had sex without (sic) marriage.” This must be true and I bow down to the courage of these women who “were loving and responsible enough not to abandon their children.” If you want to blame patriarchy, then, this must be your point of entry and it hardly ever is. Patriarchy seeks to elevate a child’s paternity from a belief to a truth, a la maternity, through marriage, control of women's bodies and behavior.

The order is also seen “as providing a sound basis for granting relief to women deserted after sexual exploitation.” Hmmm … “exploitation”? That sounds a little motivated. More than that, it treats a social issue in terms of money and what money begets – benefits.

The judge released in response “to public reaction” a brief explanatory note, the excerpt below highlighted in an article:

“The order may give rise to property and employment benefit claims relating to unmarried people.”

What was the motive behind the plaintiff bringing on the case? Was it the benefits? If yes, these could have been granted  / denied without going into definitions of when one is deemed married. I would want to wonder why the judge took the critical detour to resolve the straight forward issue before him.

The judgment as mentioned in one of the articles, “stresses on consummation being the necessary ingredient of a marriage, whether or not it results in pregnancy.” Now, I am growing tired of this euphemism, “Consummation”. Why tip-toe around what needs to be mentioned forthright? Sexual intercourse that normally leads to the making of a baby. See, it is so simple. It is not crude, whatever may be your (prudishly heightened) sensitivity; yet it is precise, and accurate too. OK, we may add-on a few exceptions, like use of birth control measures.

My last point is on what the judgment fails to address – what is the purpose of marriage? Why be married at all? “We want a bond, especially marriage, to sanctify sexual relationship between men and women.”  Who is the “We”? It is the Tamil film industry. Assume that what it wants is what it gets and more importantly, what is gets is what the society wants. Society wants sexual relationship to be sanctified. Are you comfortable with that? I am not. Why can't sex be simply sex, with no embellishments, religious or otherwise?  

My opposition to sanctifying marriage, and subsequently the processes that make up a successful union, is born out of my fear for society, how it will be constrained from doing what is best for itself – not being allowed to use condoms (the Roman Catholic Church, for example).

All that nonsense about what marriage is - commitment (faith and fidelity), compatibility, love, support, stable household, religious sacrament, legal requirements, business convenience - are all simply that, nonsense (Read a discussion on Richard Wasserstrom on adultery [7]). Every single one of them can be proven to have been violated in millions of cases. Then, what does sustain the institution of marriage, though fraying at the edges?

The above question has not been addressed in all the documents I have referred here. So, I will do it. A marriage is the “indulgence” a couple pays to society to have the normal result of their conjugal activity – sexual intercourse – being treated as legitimate. If the baby is to be treated as legitimate, you have to get married (OK, there are exceptions to this too, as a number of celebrities will attest, but not with the same force of argument; money and status replaces the “marriage indulgence” paid to society).

Therefore, in my opinion, the judge would have done well to decide the case based on how the society has treated the litigants. If it had treated them as married, they are married. And, now they are effectively in a divorce court.

Even if he had decided that the society has not treated them as married, it would not have stopped the judge from ordering the father to pay for the maintenance of the children, through the agency of the mother and suitably compensating her for such responsibilities.

It must be recognized that “sex and reproduction is between two people and both should be held responsible for its consequences, regardless of the legal status of their relationship.” I would only add that the overriding concern must be the well-being of the children. The litigants must not have been the focus, but the children. The judge must decide based on what is good for the children, the most vulnerable, yet completely ignored party. Period. All else is secondary.

If society has accepted your child as legitimate, you are married.

The strong implication is society has no power to reject any child as illegitimate, whether the "indulgence" has been paid or not. It does not have a basis to do so. By the fact of being born, each child is legitimate.

Raghuram Ekambaram

References

1.    Law, Sex and Dicta, The Hindu, June 19, 2013

2.    Courting Marriage, Geeta Ramaseshan, The Hindu, June 23, 2013

3.    A bulwark for unwed mothers, Ruchira Gupta, The Hindu, June 23, 2013

4.    Conjugal conundrums, K Venkataramanan, The Hindu, June 23, 2013

5.    Left with no love or money, Ramya Kannan, The Hindu, June 23, 2013

6.    The limits to on-screen affections, B Kolappan, The Hindu, June 23, 2013

7.    http://captainfate.blogspot.in/2011_05_01_archive.html