The Rajasthan High Court recently ruled that engaging in consensual sexual activity outside of marriage is not a punishable offense under the law for adults.

Justice Birendra Kumar noted that while there was an exception to this rule in the form of the offense of adultery under Section 497 of the Indian Penal Code (IPC), the Supreme Court had already declared this provision unconstitutional in 2018.

The court was considering an application filed by a man requesting the recall of an order in which the court had dismissed a First Information Report (FIR) filed under Section 366 of the Indian Penal Code, which pertains to the offense of kidnapping, abducting, or inducing a woman to compel her marriage.

The FIR was lodged by the man, alleging that his wife had been abducted by three individuals. However, the applicant was unable to appear in court as he was in jail for another offense. Meanwhile, his wife appeared before the court and stated that she was in a consensual live-in relationship with one of the accused individuals.

Taking into account the statement and the Supreme Court's rulings in cases such as Navtej Singh Johar v Union of India and Shafin Jahan v Asokan KM, which emphasized the primacy of constitutional morality over societal morality, the court dismissed the FIR. Dissatisfied with this decision, the complainant appealed to the High Court.

Advocate Ankit Khandelwal, representing the applicant, argued that since the applicant's wife had acknowledged her extramarital relationship, offenses under Section 494 (marrying again during the lifetime of a spouse) and Section 497 (adultery) of the Indian Penal Code were applicable.

Furthermore, he argued that the court should utilize its jurisdiction to uphold social morality and not condone an extramarital relationship by a married individual. He cited the judgment of the Punjab and Haryana High Court in Manjot Singh & Anr. Vs. State of Punjab & Ors., issued on January 25 of this year, to support his contention.

The court noted that it was apparent that the decisions of the apex court in Navtej Singh Johar and Shafin Jahan were not brought before the Punjab and Haryana High Court.

Subsequently, the Court relied on the Supreme Court's ruling in S. Khushboo Vs. Kanniammal & Ors to affirm that no statutory offense occurs when consenting adults engage in sexual activity outside of marriage, except under Section 497 of the Indian Penal Code.

The Court then emphasized that in the case of Joseph Shine v Union of India, the Supreme Court had declared Section 497 of the Indian Penal Code as violative of Articles 14, 15, and 21 of the Constitution of India, ultimately striking it down.

Furthermore, the Court clarified that the offense under Section 494 was not applicable because the complainant's wife had not entered into marriage with anyone else.

"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, while the State of Rajasthan was represented by Additional Advocate General (AAG) Ghanshyam Singh Rathore and Public Prosecutor Mangal Singh Saini.