The short answer is YES, it is legal for unmarried couples to have sex.
Perhaps a better way to put it would be to say that there is no law against premarital sex between adults. As long as everyone involved is a consenting adult, engaging in sexual relations is not illegal. The problem, however, is that just because a certain act is legal does not mean it is also considered moral. And when an act is seen as immoral, there is inevitably a lot of regulation around it.
Unmarried couples?
A quick google search with the terms “is it legal for unmarried couples to have sex” pulled up dozens of results on the hospitality industry in India, and the standard practice of denying rooms to unmarried couples. My search also led me to Quora, a very popular question-and-answer website, where someone had asked a similar question in 2018 [1]. One user, said that the Constitution gives us the right to love, and the right to privacy and freedom – but only when having sex at home or in a place where the police do not catch them. According to this user, a legal license of marriage is required to have sex and it is “best to have sex in personal space or home (not even in friend’s home) to respect dignity of our loved one”.
The user got only one thing right: the Constitution guarantees all of us certain fundamental rights, including the right to sexual autonomy. The 2017 Puttaswamy judgment and the 2018 Navtej Johar judgment of the Supreme Court both clearly expressed this, and stated that sexual autonomy is an integral component of the right to privacy under Article 21 of the Constitution. Harassing couples for engaging in consensual sex is a violation of these rights.
Police raids:
Yet, the misconception that unmarried adults cannot have sex, especially in hotels, persists. There are numerous reports [2] of police raids [3] on hotels where young couples are dragged out of their rooms and detained for hours. They may be charged with ‘obscenity’ under Section 294 of the IPC or other similar provisions as an intimidation tactic. As a means of avoiding any entanglements with law enforcement, hotels have policies that require heterosexual couples to provide proof of marriage before renting rooms. All this, combined with the stigma around premarital sex, leaves couples, especially young unmarried adults, confused about the legality of consensual sex before marriage.
Any attempt to prevent unmarried adults from engaging in consensual sex is an act of moral policing. The law does not prohibit unmarried couples from having sex, but the stigma around it means that they are forced to be discreet when doing so. Sex is associated with sin and shame, and there is a belief that it should be restricted only to conjugal spaces i.e. after marriage and in a bedroom. Anyone who deviates from the norm is punished through ostracization, or even physical violence as in the cases of police ‘catching’ and harassing couples in hotels or public places such as parks.
However, it is important to remember that this kind of police harassment does not have any legal backing. It is not a criminal offence for unmarried adults to have consensual sex. On the contrary, the right of consenting adults to have sex – whether married or unmarried, heterosexual or not – is guaranteed by the Constitution and backed by Supreme Court jurisprudence on sexual and decisional autonomy.
About the Author:
Kavya Kartik is a Senior Research Associate and Assistant Director, Centre for Health Law, Ethics and Technology (CHLET), Jindal Global Law School. She graduated with her LLB in 2018 and since then has been working with CHLET on gender and sexual minority rights, reproductive justice, health laws, caste and indigeneity, and the various intersections of law and marginalisation.
Sources :
[1] https://www.quora.com/Is-it-illegal-for-an-unmarried-couple-to-have-sex-in-a-hotel-in-the-same-city-that-they-live-in-in-India
[2] https://www.mid-day.com/articles/mumbai-couples-picked-up-from-hotel-rooms-charged-with-public-indecency/16437186
[3] https://newscentral24x7.com/bjp-ruled-jharkhand-police-raid-hotel-with-consenting-adults-detain-young-couples-for-8-hours/
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