Consensual sex sans adultery no offence

Consensual sex sans adultery no offence

Morality And Criminality Are Non-Co-Extensive: Apex Court 

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 of CJI K G Balakrishnan and Justices Deepak Verma and B S Chauhan on Wednesday. 
    The SC said in the present social milieu, some view premarital 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 SC’s judgment on Wednesday quashing 23 complaint cases against 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 IPC.” 
    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.