Author: Divvela Jyothirmai Anusha, Second-year Student of Amity University Mumbai, pursuing B.BA. LL.B. (Hons.). (Semester IV)
India has experienced a drastic change in the way that the young generation sees their relationships. With society opening up to the concept of pre-marital sex and live-in partnerships, the stigma that used to plague couples in live-in relationships has also begun to fade away.
The Hindu Marriage Act 1955 does not recognise ‘live-in-relationship’ or the 1973 Criminal Procedure Code. There is no legal notion of a live-in partnership and thus there is no guarantee of the legal status of such partnerships. By way of the Domestic Violence Act and the specific facts of the case, the court rules on the right to maintain a live-in relationship. The 2005 Domestic Violence Prevention Act acknowledges “relationships in the form of marriage” and protects women’s spouses from domestic violence. In accordance with Section 2(f), such partners can seek monetary and other relief under the Act covered by the term “domestic relationship.”
It is very clear that Indian culture is quite puritanical about pre-marriage sexual relations or something that is sexual. Sex before marriage isn’t a crime under Indian rule. It is just that the majority of Indian society consider it unethical, but the law of the land does not shape their morality. In the present social setting, some consider pre-marital sex as an assault on the centrality of marriage, while a large number see nothing wrong in it, Khushboo v. Kanniammal & Anr concluded. The Supreme Court therefore ruled that pre-marital sex is not a felony. This difference of opinion on morality did not make pre-marital sex an offense. In all the subsequent proceedings, the Supreme Court has reiterated the same opinion.
There are high chances of a child being conceived, since pre-marital sex is often assisted by living relationships. These children, unlike the heirs born out of wedlock, do not have any rights over succession. Besides this, society views them as illegitimate children, which is unacceptable. However they were cleared of this ill-fated condition by the Hon’ble Supreme Court. The status of a legitimate child and the right to property were given to them.
STATEMENT OF FACTS
The appellant gave an interview on the India Today channel in which she said that pre-marital sex should be recognised and embraced by society. DhinaThanthi, a Tamil daily, announced that her statements made a sensation in Tamil Nadu and later they had an interview with her in which the appellant allegedly defended her views. The appellant submitted a legal notice dated 2.10.2005 to the editor of ‘Dhina Thanthi’ shortly after the release of the aforementioned news story, categorically denying that she had published such comments. In essence, the appellant ordered the publisher to delete the news item published on 24.9.2005 and to publish its objections prominently within a period of three days of receipt of the notice, in the absence of which the appellant will have to take appropriate legal action against the newspaper.
Certain persons have lodged criminal charges against her. Under Sec 482 of CrPC, she appealed to the High Court to quash those criminal proceedings. The court said that only the trial court had to deal with whether her comments amounted to defamation and her complaint was dismissed. Through Special Leave Requests, she approached the Supreme Court.
Sec 292, 499 and 500 of the IPC
Section 292 of the India Penal Code (IPC) says: “A book, pamphlet, paper, writing, drawing, painting, depiction, figure or any other object is considered obscene if it is lascivious or appeals to the prurient interest or if its result (is) appears to be depraved and corrupt”.
According to section 499 of the IPC, any person who makes or publishes any imputation relating to any person intending to injure, or who knows or has reason to believe that such imputation will harm the reputation of that person, either by words spoken or intended to be read, or by signs or by visible representations, shall be deemed to have defamed that person, except in the cases anticipated below.
Section 499 also cites exceptions. These include the “imputation of truth” required for the “public good” and, thus, it is necessary to report to the public conduct of government officials the acts of any person concerning any public issue and the merits of public results.
Most of the complainants claimed that the views expressed by Khushboo in the interview is punishable under the provisions of the Indian Penal Code (IPC) dealing with obscenity, slander, deliberate insult to cause breach of peace, statements conducive to public mischief, and words, gesture or behavior intended to insult a woman’s modesty and under the Act prohibiting indecent representation of women.
The case put forward by the respondent’s counsel was that the appellant’s comment was defamatory to women and that the proceedings should be continued. The respondents also argued that as the Madras High Court declined to quash the proceedings, the court should intervene and that as the case had factual issues, it must be left to the Court of First Instance to determine certain facts.
The appellant’s counsel argued that the alleged offences are not protected by any of the offences and reiterated that under Article 21, living together is a right to life. The appellant further claimed that no one in particular was concerned by those remarks and it was a personal opinion. The lawyer also argued that according to the appellants’ observation, there was no proof as such to suggest any incidental offences.
With respect to the complaints at issue, the Court found that the appellant’s aim was neither to harm the reputation of the complainants nor to detect any real harm done to their reputation by the court. In brief, all components are absent, i.e. mens rea and actus reus. The declaration of the appellant published in ‘India Today’ (September 2005) is a very general endorsement of premarital sex and its observations are not addressed to any person or even to a ‘business or organization or group of persons.’
The Supreme Court Bench explicitly pointed out that the Indecent Representation of Women (Prohibition) Act, 1986, was enacted to prosecute publishers and advertisers who intentionally disseminate materials that indecently depict women. In her comment that was published by India Today and Dina Thanthi, Khushboo merely referred to premarital sex. Therefore it would contradict logic to invoke the Act against her as the Bench held that she was not an advertiser or publisher by any way.
Section 509 of the IPC aims to punish an individual who speaks language, actions, acts in order to damage the woman’s modesty. The views of Khushboo appeared in a written form, the court pointed out thus ruling against her on the application of that clause.
Without analysing the meaning of the reference, a simple reference to sex may also not be considered obscene in the legal sense. A personal opinion of a celebrity that pre-marital sex should be tolerated by society in the form of live-in relationships, and the latter should arise from the concept that the girl should be with virginity at the time of marriage, was held by the Supreme Court not obscene within the scope of s 292.
On behalf of any party, Khushboo did not speak, nor was her comment aimed towards a specific group. Consequently, the court noted that Section 153A of the IPC, which allows the fostering of enmity between different groups an offence, did not extend to this case.
The Court also deliberated on the legal principle nulla poena sine lege when debating the case, which means that an individual should not be prosecuted except for a direct violation of established legislation. The Court held that a person can not be prosecuted for an alleged crime unless it has been punished by law by the Legislature and falls within the scope of the offense as specified in Sections 40, 41 and 42 of the Indian Penal Code, 1860, Section 2(n) of the 1973 Code of Criminal Procedure, or Section 3(38) of the 1897 Law on General Clauses.
In this case, the Bench claimed that Section 499 of the IPC seeking to punish defamation was not attracted because neither Khushboo intended to injure the complainants’ reputation nor could we distinguish any real damage done to their reputation because of her remarks.
In Lata Singh vs State of U.P., the court referred to its decision. (2006) and affirmed that there was no crime (with the apparent exception of adultery) in a live-in relationship between two consenting adults of heterogeneous sex, while it may be viewed as immoral.[Lata Singh v. State of U.P. Anr. and Anr. MANU/SC/2960/200620/2006]
It held that the setting of the various criminal complaints against Khushboo was done in a mala fide way, as the PMK was connected with almost all the complainants. In such cases, the Bench said, it was not the role of criminal law to prosecute citizens solely for voicing unpopular views.
The appeals were allowed and the impugned judgment and order of the High Court dated 30.4.2008 was set aside. The impugned criminal proceedings were quashed.
The court reviewed Sec 499 of the Indian Penal Code and found that in this case there was no mens rea or actus reus, and the appellant’s claims were purely for the public recognition of an actual thing. The court found that the separate allegations lodged against the appellant do not as claimed, help or even present a prima facie argument for any of the criminal offences.
If a mere reference to sex alone is considered obscene, no books, even those that are strictly religious, can be sold. The measure is whether a group of people into whose hands the book, article or story falls will suffer or become depraved in their moral outlook by reading it or may have unclean and lecherous thoughts aroused in their minds.
The Bench stated that obscenity should be assessed in relation to contemporary community norms that represent the sensitivities and tolerance levels of an average reasonable individual, citing other decisions of the courts. In the mind of a fair and cautious reader, Khushboo did not identify any sexual act or say something that might arouse sexual desires. Her interview prompts a social dialogue in which individuals may choose to either defend or challenge current social mores.
- PSA Pillai: Criminal Law,12th Edition
- Ratanlal Ranchhoddas. Ratanlal & Dhirajlal’s The Indian Penal Code (Act XLV of 1860). New Delhi :Wadhwa & Co., 2007.