IS IT ILLEGAL TO HAVE SEX BEFORE MARRIAGE IN INDIA?
By Lawfarm Team August 31, 2016
It is quite evident that Indian society is very puritanical about sexual intercourse before marriage or anything that is sexual. Under Indian law sex before marriage is not an offense. It is just that majority of the Indian society finds it immoral but their morality does not form the law of the land.
If two consenting adults indulge in sexual intercourse before marriage, with each other or someone else who is also not married, then it is not an offense punishable under the Indian Law. Also, the consent given must be voluntary. It is a matter of personal choice, some may find it moral and some may not. Sex before marriage is also not a valid ground for divorce in India.
VIEW OF SUPREME COURT
The Supreme Court in S. Khushboo v. Kanniammal & Anr held that “In the present social milieu, some view pre-marital sex as an attack on the centrality of marriage while a significant number see nothing wrong in it. This conflict of opinion on morality did not make pre-marital sex an offense.
Hence, the Apex Court dictated that pre-marital sex is not a crime. The Supreme Court has reiterated the same view in all the subsequent cases.
WHAT ABOUT POLICE ARREST THEN?
If sex before marriage is not an offense then on what grounds do the police arrest people from hotels?
Making out, kissing in public is not acceptable by Indian society then how can it accept sex before marriage. The police raid the hotels and arrests bachelors and maidens for having sex even if it is not an offense. It actually takes advantage of the situation when such relation is either unknown or disapproved by the parents of the parties to sex or the society and shame that will be showered on them by the society for having been, privately, indulged in a sexual act. They cannot protest as it will bring them a bad name in this conservative society.
WHAT IS PROHIBITED BY LAW?
The Indian Law forbids adultery. This offense has been made punishable under Section 497 of Indian Penal Code, 1860. This section states that if a man engages in sexual intercourse with a married woman, without the consent of her husband then he can be imprisoned.
This section clearly specifies that the woman is not an offender under this section. The woman cannot even be held liable as an abettor of the offense under the Indian law. This is an offense for men only.
ONLY IF THE WOMAN IS MARRIED
If the sexual intercourse with a woman is without the consent of her husband and with the consent of the woman then it is punishable as the offense of adultery. In case, the sexual intercourse was without her consent then the offense of rape is committed. In both the cases, only the man will be punished.
BOTH ARE MARRIED
If a married man indulges in sexual intercourse with the wife of another man without his consent then not only he will be liable for the offense of adultery but this will also be a valid ground for his wife to file a divorce against him.
WHEN DOES THE SEX BEFORE MARRIAGE BECOME AN OFFENCE?
It becomes an offense under the following circumstances:
• When committed in a public place;
• When both the parties are not adults;
• When consent of the girl is involuntarily or forcefully obtained;
• When the girl gave a free consent but she was below the age of 18 years;
• When a man breaks his promise to marry the girl after having sex with her.
It can be concluded that pre-marital sex is not an offense if both the girl and the boy are adults and they willfully consented to the act. Also, the girl should not be married to someone else. Their act becomes punishable if it is violative of Section 375 (rape), 415 (cheating) and 479 (adultery) of the Indian Penal Code, 1860.
Authored By: Sunidhi Pubreja