A bench comprising Chief Justice K. G. Balakrishnan and Justices Deepak Verma and B. S. Chauhan allowed the appeal filed by the actress against the decision of the Madras High Court which had dismissed her plea to quash the cases.
The cases were registered in various places in Tamil Nadu for her interviews in 2005. Kushboo, once venerated as a goddess in Tamil Nadu for her roles in Tamil cinema in the 1990s, had kicked up a row by saying that pre-marital sex was fine “provided safety measures are followed to prevent pregnancy and sexually transmitted diseases”. She went on to say that “no educated man would expect his wife to be a virgin”.
The remarks sparked a storm in Tamil Nadu. The Dalit Panthers of India (DPI) and the Pattali Makkal Katchi (PMK) hauled her over the coals and filed a slew of cases in various courts throughout Tamil Nadu. The actor also had to face a series of protests and footwear and eggs were hurled at her when she appeared before a Magistrate.
The DPI had gone to the extent of saying that “Kushboo made the remarks on pre-marital sex to justify her own life’s experience. She had no right to talk of the chastity of Tamil women.” He went on to note, “It is not correct to advocate free sex. Marriages are based purely on trust. Both partners have to be faithful to each other if the marriage is to work…It is important to protect the institution of marriage.”
Earlier, the Supreme Court had opined that a man and woman living together without marriage cannot be construed as an offence. “When two adult people want to live together what is the offence. Does it amount to an offence ? Living together is not an offence. It cannot be an offence,” a three judge bench of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan observed.
The court said even Lord Krishna and Radha lived together according to mythology. The apex court said there was no law which prohibits live-in relationship or pre-marital sex, The Indian Express had reported.
The apex court made the observation while reserving its judgement on a special leave petition filed by Kushboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005.
The judges grilled the counsel for some of the complainants in the case and repeatedly stressed that the perceived immoral activities cannot be branded as offence.
The argument of the counsel was that her comments allegedly endorsing pre-marital sex would adversely affect the minds of young people leading to decay in moral values and country’s ethos.
“Please tell us what is the offence and under which section. Living together is a right to life,” the apex court said apparently referring to Article 21 which granted right to life and liberty as a Fundamental Right.
The apex court further said the views expressed by Kushboo were personal. “How does it concern you. We are not bothered. At the most it is a personal view. How is it an offence? Under which provision of the law ?” the bench asked the counsel.
The apex court further asked the complainants to produce evidence to show if any girls eloped from their homes after the said interview. “How many homes have been affected can you tell us,” the Bench asked while enquiring whether the complainants had daughters. When the response was in the negative, they shot back, “Then, how are you adversely affected ?”
Kushboo had approached the apex court after the Madrash High Court in 2008 dismissed her plea for quashing the criminal cases filed against her through ought Tamil Nadu.
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