Pre-marital sex not an offence: SC
Maintaining that pre-marital sex is not an offence, the Supreme Court has said criminal law cannot be set in motion against a person for merely expressing views against public morality.
“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 court said.
Coming out in support of fundamental right to freedom of speech and expression, a three-judge bench headed by Chief Justice of India K G Balakrishnan, which quashed the criminal cases against actress Khushboo for views supporting pre-marital sex, said: “It is not the task of the criminal law to punish individuals merely for expressing unpopular views.”
The bench, which received numerous letters requesting it to review its “order” (though there was only certain remarks and questions posed to counsel) in the case, criticised the media for “misquoting and misinterpreting” its observations.
Accepting senior advocate Pinky Anand’s argument that Khushboo’s statement could not be construed as an open endorsement of sexual activities of all kinds, the bench said: “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.”
It said, “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.” The SC said notions of morality are inherently subjective and the criminal law cannot be used as means to unduly interfere with the domain of personal autonomy.