Adults having sex outside marriage is not an offence: Rajasthan High Court

Adults willingly having sex outside marriage is not an offence under law, the Rajasthan High Court recently held [Yadram and Ors v State of Rajasthan and Ors.].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 Court was hearing an application by a man seeking to recall an order where the Court had quashed an FIR under section 366 (Kidnapping, abducting or inducing woman to compel her marriage) of the Indian Penal Code.The FIR was registered by the man alleging that his wife was abducted by three persons.The applicant could not appear in the case as he was in jail for another offence. In the meantime, his wife appeared and told the Court that she was in a voluntary live-in relationship with one of the accused.Considering the statement and Supreme Court's decisions in Navtej Singh Johar v Union of India as well as Shafin Jahan v Asokan KM, which reiterated that constitutional morality ought to have precedence over societal morality, the Court quashed the FIR. Aggrieved by this order, the complainant moved the High Court. .Advocate Ankit Khandelwal for the applicant contended that since the applicant's wife had admitted the extra-marital relationship, offences under section 494 (marrying again during life-time of husband or wife) and 497 (adultery) of IPC were made out.Moreover, he contended that the Court should exercise its jurisdiction to protect social morality and not protect an extra-marital relationship by a married person. He relied on Punjab and Haryana High Court's judgment in Manjot Singh & Anr. Vs. State of Punjab & Ors. passed on January 25 this year..The Court stated that it was evident that the apex court's decisions in Navtej Singh Johar and Shafin Jahan were not placed before Punjab and Haryana High Court. Thereafter, the Court relied on the Supreme Court's decision in S. Khushboo Vs. Kanniammal & Ors to assert that no statutory offence takes place when adults willingly have sex outside marriage, with the exception of section 497 IPC.The Court then underlined that in Joseph Shine v Union of India, the apex court had declared Section 497 IPC as violative of Articles 14, 15 and 21 of the Constitution of India and struck it down.Further, it stated that the offence under section 494 was also not made out as the complainant's wife had not married anyone."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. Accordingly, the Court found no merit in the application and dismissed it..The accused were represented by advocate Jai Raj Tantia.The State of Rajasthan was represented by Addtional Advocate General (AAG) Ghanshyam Singh Rathore and Public Prosecutor Mangal Singh Saini. .[Read Order]