Khushboo

New Delhi, April 29: The Supreme Court has reaffirmed that pre-marital sex doesn’t amount to an offence under Indian law, and stressed the need to tolerate “expression of opinion in favour of non-dogmatic and non-conventional 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,” said a three-judge bench headed by Chief Justice of India K.G. Balakrishnan.

The court said this yesterday while quashing criminal cases filed against actress Khushboo over her remarks on the need to be more open on pre-marital sex and the need for sex education to check venereal diseases. During the last hearing of the case in March, the judges had observed that pre-marital sex was not illegal.

The judges said Khushboo’s remarks, in a 2005 magazine interview, did provoke a controversy as the implied acceptance of pre-marital sex and live-in relationships was viewed by some as an attack on the centrality of marriage.

The judges referred to a judgment, delivered by another bench in 2006, that a live-in relationship between two consenting adults does not amount to any offence, though it may be perceived as immoral.

“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,” the bench said.

It pointed out that in “some indigenous groups within our society, sexual relations outside the marital setting are accepted as a normal occurrence”.

The court said notions of social morality are subjective and criminal law could not be used to interfere with the domain of personal autonomy, in this case with Khushboo’s right to express her views.