PERSPECTIVE OF INDIAN SOCIETY
It is no secret that Indian society is quite prudish about anything sexual, all the more about sex before marriage. Sexual intercourse before marriage is not an offence in India. In India, a major portion of the society considers sex before marriage immoral but it does not make it an illegal act.
It may be difficult or sometimes impossible for some members of the society to accept the fact that sex before marriage is legal but their views do not constitute law. It is their subjective opinion only. A social stigma has been attached to sex by our society that only married couples can have sex.
This means sex before marriage is legal in India but has not gained social acceptance by the Indian society as a whole. The couples arrested from hotels are just an example of why legality doesn’t always mean social acceptance. But with the impact of Western culture and modernization it has gained social acceptance by many sections of the society.
SOCIAL ACCEPTANCE V. THE LAW
No law in India declares that sex before marriage is an offence in India if both the consenting partners are adults. Sexual intercourse between two consenting adults is legal in India except for adultery. If two adults voluntarily consent and indulge in sexual intercourse before their marriage with each other or with someone else, who is not married, then they cannot be charged for any offence. Thus, indulging in sexual intercourse before marriage becomes a matter of your choice whether you find it moral or not. But just because someone else finds it immoral does not make it illegal.
It has not even been accepted as a valid ground for divorce that one of the parties to marriage had indulged in sexual intercourse before marriage. What is forbidden by law is adultery. Also, it is an offence for men only.
We live in a society that disapproves acts like making out, kissing or sex unless you are married to the person indulged in these acts with you. The society is going to make an issue out of it if you are not married to the other person just because they feel it is immoral. Therefore, the police arrest couples from hotels even if they have not committed any offence but two consenting adults were indulged in sexual intercourse. It, then, takes advantage of the situation wherein either their parents are not aware of their relation or the social disapproval and shame that it follows after having being caught in a sexual act privately, with someone who is not acceptable to the society or their parents.
In 2010, the Supreme Court reiterated that heterosexual relationship between two consenting adults, including pre-marital sex, is not an offence except in cases of “adultery”. A bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan said, “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 offence. Morality and criminality are not co-extensive. Notions of social morality are inherently subjective and criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”
Hence, the Supreme Court ruled that pre-marital sex is not an offence. The same view has been reiterated by the court time and again.
So, beware of the law that it is not illegal to have sex before marriage and police cannot arrest you for the same.
IS IT ILLEGAL TO HAVE SEX WITH A MARRIED WOMEN?
The act of indulging in the sexual offence may or may not be immoral for the person committing it but it is an offence for men to indulge in sexual intercourse with married women although with her consent but without the consent of her husband.
In India having sex with married women is an offence for men under Section 497 of Indian Penal Code, 1860. The men are punishable under the above-stated section for committing adultery. The section states that:
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”
The offence of adultery states that if the man either married or unmarried indulges in sexual intercourse with a married woman even with her consent but without her husband’s consent shall be imprisoned for maximum five years or fined. But adultery is not an offence for a woman. The only consequence that she may have to bear is divorce case from her husband.
This discrimination for women has been justified by the lawmakers under Article 15(3) of the Constitution of India, 1950. It states that:
“Nothing in this article shall prevent the State from making any special provision for women and children.”
The view that ‘Right to prosecute man is not extended to the women under the offence of adultery’ has been reiterated by the Supreme Court of India in V. Revathi v. Union of India & Ors. and many other alike cases.
If a man irrespective of the fact that whether he is married or not indulges in sexual intercourse with a woman who is unmarried is not punishable under the offence of adultery as the pre-requisite for the offence cannot be met. But if the sexual intercourse is without the consent of the woman then he is punishable for the offence of rape.
In case the two indulge in sexual intercourse and the man is married to someone else then he cannot be charged with the offence of adultery but his wife can file a divorce case against him.
WHEN THE ACT OF SEX BEFORE MARRIAGE BECOMES ILLEGAL
The act of indulging in sexual intercourse before marriage is valid but it becomes an offence in the following circumstances:
- The act of indulging in sexual intercourse becomes an offence when it is committed in a public place. Even then it is an offence because it is public indecency to indulge in a sexual act in public places and not because the two had sex before marriage.
- It also becomes an offence if the girl indulged in a sexual act is not an adult. If the girl is below the age of 16 years and the two indulge in sex even with the consent of both still the boy can be punished for rape under Section 375 of Indian Penal Code, 1860. If the consent of the girl is obtained forcefully by threatening the girl either to hurt her or any other person in whom she is interested then it is not a valid consent and is punishable under the above-stated section. The other grounds when a sexual act becomes illegal as specified under Section 375 of IPC is when the girl consents but at the time of giving such consent she is unable to understand the nature and consequences of the act.
- The sexual act before marriage also becomes an offence for men when he promises to marry the woman but refuses to do so after indulging in a sexual act with the woman under section 415 of Indian Penal Code, 1860. It is punishable either for the term of one year or with fine, or with both.
It can be concluded that indulging in the sexual act before marriage is not an offence punishable under Indian law itself if both the parties indulged in the act give their consent freely and are adults. Also, the woman shall not be married to someone else. It becomes an offence when the act violates provisions of Sec 375, 415 and 497 of Indian Penal Code, 1860.
Therefore, indulging in the sexual act before marriage is not an illegal act but is considered immoral activity by some people in society and gives a bad name to society.
 S. Khushboo Versus Kanniammal & Anr, 2010 (2) R.C.R. (Criminal) 793.
 Sec. 497, Indian Penal Code, 1860.
 V. Revathi v. Union Of India & Ors, 1988 AIR 835.