Supreme Law News

Is sex outside marriage crime

The exception, according to Justice Birendra Kumar, was the adultery offense under Section 497 of the Indian Penal Code (IPC), but the Supreme Court had already declared it to be unconstitutional in 2018.

According to the Rajasthan High Court's recent ruling in Yadram and Ors v. State of Rajasthan and Ors, adults who voluntarily engage in extramarital sex are not breaking the law.

Evidently, as observed in S. Khushboo v. Kanniammal & Ors, consenting people to have sex outside of marriage does not constitute a statutory offense.

The ruling dated March 21 said that the exception was adultery under Section 497 IPC, which has already been overturned.

A man was applying to the court to recall an order in which the court had dismissed a false complaint under section 366 of the Indian Penal Code, which deals with kidnapping, abduction, and forcing a lady into marriage.

The man filed a police report, claiming that three people had kidnapped his wife.

Due to his incarceration for a previous offense, the applicant was unable to participate in the case. His wife then made an appearance before the court to admit that she was living with one of the accused on a voluntary basis.

The Court dismissed the FIR after taking into account the assertion and rulings from the Supreme Court in Navtej Singh Johar v. Union of India and Shafin Jahan v. Asokan KM, which reaffirmed the idea that constitutional morality should take precedence over social morality.

This order infuriated the complainant, who filed a lawsuit in the High Court.

The applicant's attorney, argued that since the applicant's wife had acknowledged the extramarital affair, the IPC's sections 494 (marrying again during a spouse's lifetime) and 497 (adultery) were proven to have been broken.

Furthermore, he argued that the Court ought to use its authority to uphold social morality rather than shield a married person from an extramarital affair.

He cited the ruling in Manjot Singh & Anr. Vs. State of Punjab & Ors., rendered on January 25 of this year by the Punjab and Haryana High Court.

The Punjab and Haryana High Court was not presented with the rulings of the Supreme Court in the cases of Navtej Singh Johar and Shafin Jahan, the Court declared.

The Court then asserted that, with the exception of section 497 IPC, no statutory offense occurs when individuals voluntarily have sex outside of marriage, citing the Supreme Court's ruling in S. Khushboo Vs. Kanniammal & Ors.

The court went on to say that in Joseph Shine v. Union of India, the highest court had ruled that Section 497 IPC violated Articles 14, 15, and 21 of the Indian Constitution and had therefore been overturned.

Additionally, it said that since the complainant's wife had not gotten married, the offense under section 494 was likewise not proven.

"Unless marriage is pleaded and proved, only marriage like relationship such as living-in-relationship would not come within the mischief of Section 494 IPC," the Supreme Court stated.

As a result, the Court rejected the application after concluding it lacked merit.

JUDGEMENT

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( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )

Advocate & Consultant Supreme Court of India, High Courts & Tribunals.