Ambiguities and clarifications

Print edition : September 06, 2013

Justice C.S. Karnan of the Madras High Court. Photo: R.K. SRIDHARAN

Interview with Justice C.S. Karnan.

THE recent judgment by justice C.S. Karnan of the Madras High Court on what he prefers to call an “18-21 relationship” has caused an intense controversy in the media and in the public domain. While puritans perceive it to be regressive, others call it progressive. Frontline met the judge at his office in the High Court recently and sought a few clarifications on the judgment, which had led to many misgivings and misinterpretations. He said the judgment was thoroughly misread and hence misunderstood.

Accepting that a certain amount of ambiguity had crept into the text of his 15-page judgment, especially in the general observations pertaining to unmarried young partners indulging in sex, he said this had led to some misconceptions and added that he was not averse to a healthy debate on his judgment. He said that the judgment had led to a cascading effect in the lower courts. “Victimised women in a patriarchal society will get justice now since my judgment has opened up a debate everywhere,” he said. Excerpts:

The judgment has been reviewed as progressive by many but has been criticised and commented upon adversely by others. How do you see it?

No judgment is above debate or criticism. The Constitution has given the right, but it should be constructive. Adverse comments should not be passed without fully understanding the judgment and before analysing the relevance of my “observations”. First, one has to differentiate observations from the ruling. I had not ruled that premarital sex in general must be legalised.

It is alleged that your judgment endorses premarital sex among the youth.

This needs elaboration. I have looked up various judgments, including that of the Supreme Court, on premarital sex, before writing this [judgment]. Judgments on such sensitive issues should carry a social message that should have a bearing on society. I interpreted the phrase “freedom of choice” of two people who attained the mandatory age as adults, enshrined in the Constitution.

But it seems to convey the sweeping message that sexual consummation happens to be the “main legal aspect” for any marriage. How do you justify this?

Yes, if any couple of marriageable age choose to consummate their sexual cravings, such as in the instant case, under the same shelter, then that act becomes a total commitment [to each other] with adherence to all consequences that may follow except on certain exceptional considerations. Before forming an opinion, one must have an analytical approach based on facts and evidence in relation to this particular “living-in” relationship case.

How do you justify the rationale behind the argument that two unmarried youngsters who have indulged in sex with each other can be termed husband and wife?

First, you should go through the judgment in detail. I have never generalised and I never called all those who had sex with each other as husband and wife. I gave a note of clarification when the media misinterpreted me. What I mean exactly is that if an unmarried girl of 18 and a youth of 21 years, a bachelor, live a marital life under the same roof and have a sexual relationship, then the man and the girl become husband and wife even though it does not necessarily mean that all customary rights pertaining to a married couple are to be followed. Marriage solemnisation is only an obligation and not a mandatory one in such circumstances. It should not, however, affect “third party’s rights” and invite any “third party interference”.

But the use of terms such as “third party interference” or “without affecting third party’s rights” seems to be lacking in clarity. There is an element of ambiguity.

I accept that traces of ambiguity had crept into the text, especially where I made some general “observations” to justify my final ruling. There is a distinct difference between young unmarried couples and others. I am not endorsing random and casual sex or extramarital affairs. Sex between, for example, an unmarried girl and a married man, or a married woman and another married man or a married woman and a bachelor or between persons who are forbidden to marry as per their religious laws is not what I had supported. And that is what I meant. I have read in detail the laws pertaining to marriage of various faiths and customs. My judgment is not against any religion.

Have you analysed the impact the judgment has had on society?

Yes. A positive trend has emerged. Victims, mainly gullible women from socially and economically weaker sections, have started quoting this judgment in civil courts. Armed with it, these victims, I am told, are approaching various courts seeking justice, especially in the absence of specific provisions in civil law for such instances. It, social activists claim, has started instilling a sort of responsibility in the minds of young men, too, with regard to sexual relationships. My judgment ruled compensation to the victim in this specific case, setting a radical precedent. It is the duty of the court to give protection to women, especially victims.

Do you regret that what is a socially progressive judgment has been dragged into a controversy?

Yes, I do. I am pained at the insinuations. But the objective of my message has reached the weak and the needy as it ensures justice for all, especially hapless girls who are in a “relationship in the nature of marriage”.