The Supreme Court has held that pre-marital sex is not a statutory offence and criminal law cannot punish individuals for expressing "unpopular views" justifying such acts, as it will 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 Balakrishnan and Justices Deepak Verma and B S Chauhan passed the judgement while quashing the criminal cases filed against 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 threshold 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 Pattali Makkal Katchi 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 of 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.