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 maritial 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-maritial 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 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.
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