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Saturday, 1 May 2010

Except for adultery (sexual relationship with married persons), consensual sex no criminal offence, says Supreme Court of India

Except for adultery (sexual relationship with married persons), consensual sex no criminal offence, says Supreme Court of India
Apr 30, 2010

NEW DELHI: Consensual heterosexual relation between adults, including pre-marital sex, is no offence except in cases where the partners are liable to be charged for "adultery", ruled the Supreme Court.


It said the courts attach a lot of importance to personal autonomy and a person indulging in an immoral act need not necessarily be a culprit in the eyes of law. "Morality and criminality are non co-extensive," said a Bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan on Wednesday.

The SC said in the present social milieu, some view pre-marital sex as an attack on the centrality of marriage while a significant number see nothing wrong in it. This conflict of opinion on morality did not make pre-marital sex an offence, it ruled.

"Notions of social morality are inherently subjective and criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy," it said.

This clear finding and the judicial logic supporting it got substantial space in the apex court's judgment on Wednesday quashing 23 complaint cases against South Indian actress Khushboo, who was harassed through litigation for her remarks on prevalence of pre-marital sex in cities.

Justice Chauhan, writing the 41-page judgment for the Bench, said, "While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery' as defined under Section 497 of the Indian Penal Code."

Section 497 provides, "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall be punishable as an abettor."

The Bench also did not understand the uproar over its comments on pre-marital sex and live-in relationships saying the apex court had in 2006 held that a live-in relationship between two consenting adults of opposite sex did not amount to any offence with the obvious exception of adultery.

It said there was an urgent need for reactionary forces to tolerate unpopular opinions expressed on sensitive issues by writers, authors and other persons and not hound them by instituting complaint cases against them.

"It is not the task of criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the freedom of speech and expression is indeed very high and there should be a presumption in favour of the accused in such cases," the Bench said.

It said Khushboo's remarks did provoke a controversy since the acceptance of pre-marital sex and live-in relationships was viewed by some as an attack on the centrality of marriage.

"While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside marital setting are accepted as a normal occurrence," the SC said.

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