A one-night stand or a physical relationship between a man and a woman does not fall under the definition of marriage under Hindu laws, the Bombay high court said recently in an important order. 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.
“Broadly, either customary solemnisation of marriage is required or performance of legal formality is a condition precedent to label that relationship as a marriage… Any sexual intercourse which took place by choice or by chance or by accident is not a marriage,” said Justice Mridula Bhatkar.
The court pointed to Section 16 of the Hindu Marriage Act that restricts itself to “marriage” but recognises that the society is going through changes. “In some countries, homosexual unions are accepted as marriages; so also live-in relationships and children born within such relationships have posed as complicated issues and a challenge to legal thinkers to define the term marriage whether in a wider or narrow meaning,” the judge said.
Under the Hindu Marriage Act, marriage, even if subsequently declared as void, has to be proved to decide the rights of the child. In the case before the court, the man had two wives. 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.
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