Mumbai, June 11: In an important order, the Bombay High Court said that a one-night stand or a physical relationship between a man and a woman by choice or by chance or by accident does not fall under the definition of marriage under Hindu laws.
A child born out of such an encounter may not have any rights over the father’s property, if there is no marriage, the court added.
Justice Mridula Bhatkar, however, acknowledged that some countries have widened the scope of marriage to recognize live-in relationships and same-sex marriages. The court was hearing a plea that had asked it to decide whether a girl child born of a second wife had right to her father’s pension and other benefits.”Broadly, either customary solemnisation of marriage is required or performance of legal formality is a condition precedent to label that relationship as a marriage. For example, a one-night consensual affair cannot be called a marriage. Merely a physical relationship between a man and a woman also cannot be called a marriage. Any physical intimacy/sexual intercourse which took place by choice or by chance or by accident is not a marriage,” said Justice Bhatkar.
The Court pointed to Section 16 of the Hindu Marriage Act that restricts itself to “marriage” but recognizes that society is going through changes. “I am constrained to mention that society is undergoing a sea-change in social norms, values and relationships. In some countries, homosexual unions are accepted as marriages; so also live-in relationships and children born within such relationships have posed complicated issues and a challenge to legal thinkers to define the term marriage whether in a wider or narrow meaning,” the judge observed.
Justice Bhatkar also pointed out that the Domestic Violence Act enacted in 2005 recognizes “relationship in the nature of marriage” which could extend to live-in relationships in the Indian society, that is now-a-days accepted as a particular mode of social bonding like marriage. Under the Hindu Marriage Act(HMA), marriage, even if subsequently declared as void, has to be proved to decide the rights of the child.
“On a careful reading of Section 16 of the HMA, I am of the view that marriage is a condition precedent to decide the legitimacy of a child. In other words, the benefit of (HMA) is available to an illegitimate child who is born to parents who have undergone the rituals/formalities of performance of marriage, which may be void or voidable,” said the judge, adding, “For any such child born without marriage, there is no legal sanction.”
In the case before the court, the man had two wives. As per the HMA, a second marriage when the man’s first marriage was subsisting and his first wife was alive, is void. Since there was proof that the man had married a second time, the court held that though his second marriage was void, the daughter from his second wife had the right to a share of his property.