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Pre-marital sex not a statutory offence: Supreme Court

The Supreme Court has held that pre-marital sex is not a statutory offence.



New Delhi: The Supreme Court has held
that pre-marital sex is not a statutory offence and criminal
law cannot punish individuals merely for expressing "unpopular
views" justifying such acts as it would violate freedom of
speech and expression.

"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 IPC," the apex court said in a
judgement.

A three judge bench of Chief Justice K G Balakrishna
and justices Deepak Verma and B S Chauhan passed the judgement
while quashing the criminal cases filed against popular south
Indian actress Khushboo for her views on "pre-marital sex".

"It is not the task of the criminal law to punish
individual merely for expressing unpopular views. The
thresh hold for placing reasonable restrictions on the `freedom
of speech and expression` is indeed a very high one and there
should be a presumption in favour of the accused in such
cases.

"It is only when the complainants produce materials
that support a prima facie case for statutory offence that
magistrates can proceed to take cognizance of the same. We
must be mindful that the initiation of a criminal trial is a
process which carries an implicit degree of coercion and it
should not be triggered by false and frivolous complaints
amounting to harassment and humiliation to the accused," the
court said.

Writing the judgement, Justice Chauhan said the
complaints against the actress were instituted with a malafide
by office bearers of PMK party and "in order to prevent the
abuse of the criminal law machinery", the same has to be
quashed.

Asserting that Khushboo`s statement was not obscene
or harmed the reputation, the bench said, "the appellant`s
statement published in `India Today` is a rather general
endorsement of pre-marital sex and her remarks are not
directed at any individual or event at a `company` or an
association or collection of persons."

It said the statements did not invite any case for
defamation as defined under Section 499 of IPC.

"The appellant`s statement published in `India
Today` (in September 2005) is a rather general endorsement of
pre-marital sex and her remarks are not directed at any
individual or even at a company or an association or
collection of person," the apex court observed.

The apex court said that though Khushboo`s remarks
provoked a controversy, there must be a culture of open
dialogue when it comes to societal attitudes on issues like
pre-marital sex and live-in relationship.

"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 society wherein sexual relations outside the marital
setting are accepted as a normal occurrence. Even in the
societal mainstream, there are a significant number of people
who see nothing wrong in engaging in pre-marital sex," it
said.

The court observed that notions of social morality are
inherently subjective and the criminal law cannot be used as
means to unduly interfere with the domain of personal
autonomy.

"Morality and criminality are not co-extensive. In the
present case, the substance of the controversy does not really
touch on whether pre-marital sex socially acceptable, instead
the real issue of concern is the disproportionate response to
the appellant`s remarks," it said.

If the complainants had any grievances against the
actress, they should have contested the same through the media
and not by filing criminal complaints, the court said.

Rejecting the argument that her views endorsing pre-
marital sex misguided young people, Justice Chauhan said, "All
that the appellant did was to urge the societal acceptance of
the increasing instances of pre-marital sex when
both partners are committed to each other. This cannot be
construed as an open endorsement of sexual activities of all
kinds.

"If it were to be considered so, the criminal law
machinery would have to take on the unenforceable task of
punishing all writers, journalists or other such persons for
merely referring to any matter connected with sex in published
materials."

The court further said that for the sake of argument,
even if it were to be assumed that the appellant`s statements
could encourage some people to engage in pre-marital sex, no
legal injury has been shown since the latter is not an
offence.

PTI

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