'Sex among consenting adults no statutory offence'

Apex court justifies quashing of cases against actress Khushboo

'Sex among consenting adults no statutory offence'

“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 settings, with the exception of adultery as defined under Section 497 of the IPC,” said a bench of Chief Justice K G Balakrishnan, Justices B S Chauhan and Deepak Verma while quashing the criminal complaints against film star Khushboo.

The judgment

“A major girl is free to marry anyone she likes or ‘live with anyone she likes,” said the 41-page judgment, which was released here on Thursday.  The bench said there are numerous other decisions both in India and abroad which mandate that obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person.

Justifying quashing of the cases against Khushboo, the apex court said: “At no point of time the appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.” The court observed that the statement by the actress was made in the context of a survey which has touched on numerous aspects relating to the sexual habits of people in big cities.

While dismissing the arguments of the complainants, the judges said: “We must also respond to the claim that the appellant’s remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not directed her remarks towards any individual or group in particular.”

Her remarks 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 unforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials.” The bench said a culture of responsible reading is to be inculcated amongst the prudent readers.

“Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated as the same can not be a ground to penalise the author.”

Misreporting

While on reporting court matters by the journalists, the Supreme Court pulled both electronic and print media for misreporting during the hearing of the case when the judges had made certain observation on Hindu gods Krishna and Radha.

“It is therefore not only desirable but imperative that electronic and news media should also play a positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel,” the bench observed.

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