Rajasthan High Court held that having consensual sex outside the marriage or willingly living with someone other than spouse is not an offence under law.
Hearing a petition by a man, who sought court's intervention for registering a case of abduction of his wife against another man, who is said to be staying with his wife, Justice Birendra Kumar observed that the exception was the offence of adultery under Section 497 of the Indian Penal Code (IPC) but the same had already been struck down as unconstitutional by the Supreme Court in 2018.
“Evidently as noticed in S Khushboo Vs. Kanniammal & Ors, no statutory offence takes place when adults willingly engage in sexual relations outside the marital setting. Exception was adultery under Section 497 IPC, which has already been struck down,” the order dated March 21 stated.
The complainant, however could not appear before the court and he was in jail for some offence. His wife though told the court that she was not abducted by the other person and was willingly living with the accused outside the marriage.
Advocate of the complainant, pleaded that charges of adultery and marrying again during life-time of spouses should be maintainable under section 494 and 497 against the woman as she has admitted the extra-marital relationship.
The advocate also contended that the High Court should come for wed to protect the social morality rather than extra marital relationship by a married person.
The Court stated that when two consenting adults have sex outside marriage, they do not violate any statutory law with the exception of section 497 IPC. And the Supreme Court had declared Section 497 IPC as violative of Articles 14, 15 and 21 of the Constitution of India and struck it down.
The court held that no offence has taken place between the two adults having consensual sex outside marriage.
“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 Court said.
The BuckStopper, run by a group of seasoned journalists, holds the powerful accountable. The buck stops with them, as they cannot shrug off their official responsibilities.
