Sex Between Consenting Adults in Extramarital Affair Not a Crime: Calcutta HC

The Jalpaiguri circuit bench of the Calcutta High Court has ruled that a physical relationship between two consenting married individuals, even if extramarital, does not amount to a criminal offence. The bench emphasised that such relationships, when initiated with mutual consent and awareness of each other’s marital status, cannot be deemed deceptive or coercive.

The ruling came while hearing a case in which a married woman accused a married man of luring her into a sexual relationship under the pretext of marriage. However, the court held that the relationship appeared consensual from the outset and dismissed the criminal proceedings against the man.

According to reports, the woman filed a police complaint on September 8, 2024, at the Maynaguri Police Station. She invoked Section 69 (sexual intercourse by deceitful means) and Section 351(2) (criminal intimidation) of the Bharatiya Nyaya Sanhita (BNS).

Case Background Reveals Two-Year Affair

As per the report, the woman and the accused had been in a two-year-long extramarital relationship. Both were married and fully aware of each other’s marital status. When the woman’s husband discovered the affair and chose not to live with her, she allegedly asked the man to marry her. Upon his refusal, she lodged a case claiming a false promise of marriage had misled her.

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HC Observations and Ruling

Justice Bibhas Ranjan De ruling was clear: “Both parties are married and aware of each other's marital status. Then, the consent given under such circumstances shall be deemed consensual rather than coerced or misled by a false promise, as the initial consent for a physical relationship will be perceived to be based on mutual attraction. It is expected that both parties be aware of their respective marital obligations.”

The judge further noted that the "culpable mentality and clandestine motives" required to establish criminal wrongdoing were not evident in this case. As such, the court quashed the proceedings against the man.

Supreme Court Previously Addressed Similar Cases

The ruling aligns with the Supreme Court's previous observations on the misuse of criminal provisions in consensual relationships. In a 2024 judgement, the apex court remarked, “It is evident from the large number of cases decided by this court dealing with similar matters... that there is a worrying trend that consensual relationships going on for prolonged periods, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence.”

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