[Reader-list] a kiss is just a kiss. or is it?

[Anuj Bhuwania]

Am pasting J. Muralidhar's order below. The two people concerned being
married is clearly not irrelevant in his order. But upholding  the
right to public display of affection for heterosexual
monogamous legally sanctioned lovers has never ceased to amount to  a
radical act in India, as far as I know.

  IN THE HIGH COURT OF DELHI AT NEW DELHI
 64.
 CRL.M.C. 283 of 2009

 RAHUL MOOKERJI and ANR. ..... Petitioner
 Through: Mr. Trideep pais and Ms. Naomi Chandra, Advocates.


versus

 STATE THR. N.C.T. OF DELHI and ANR. ..... Respondents
 Through: Mr. Pawan Behl, APP.

 CORAM:
  HON'BLE DR. JUSTICE S.MURALIDHAR
  O R D E R
  02.02.2009

 Crl.M.A.No.1073 of 2009
 Exemption allowed subject to all just exceptions.
 The application is disposed of.
 CRL.M.C. 283 of 2009 and CRL.M.A. No. 1072 of 2009 (stay)
 1. The facts brought to the notice of this Court by way of the present
 petition which seeks the quashing of proceedings arising out of FIR No. 581 of
 2009 under Section 294/34 IPC are rather troubling. The Petitioners
are a young
 couple, aged 28 and 23 years, who solemnized their marriage on 4th September
 2008 at the Arya Samaj Mandir, Jamuna Bazar, Delhi apparently without the
 knowledge of their respective parents. They sought the services
 CRL.M.C. 283 of 2009
 page 1/4
 of a lawyer to get their marriage registered under the Hindu
Marriage Act, 1955.
 The lawyer asked them to come to the Dwarka Court Complex on 18th
September 2008
 apparently to get some paper work done in regard to the registration of their
 marriage. While they were waiting under the Metro Station near the court
 complex at around 3 pm in the afternoon, an Assistant Sub-Inspector (?ASI?) of
 Police Vidyadhar Singh (No. D/3563 PIS No. 16960047) attached to the Police
 Station Dwarka along with a constable Roshan Lal (No. 1314/SW)
accosted them and
 allegedly told them that he knew what they were up to. According to the FIR
 which was registered at the instance of the Vidhyadhar Singh, he found the two
 Petitioners ?sitting in an objectionable position near Metro Pillar
No.1140 and
 were kissing each other. As a result of which the passersby were feeling bad.?
 (This is the English translation of the FIR which was registered in
Hindi which
 corresponds to these words).

 2. The FIR records that on enquiry the ASI found that Petitioner No.2 is
 the wife of Petitioner No.1 residing at the same address. Learned counsel for
 the Petitioners clarifies that in the complaint made to the Bar
Council of India
 and to the Commissioner of Police although the addresses of the CRL.M.C. 283
 of 2009 page 2/4
 parties are shown as being in Greater Kailash, which is the
permanent address of
 Petitioner No.1, this has been done for the sake of convenience.
Since this was


 a love marriage without the knowledge of their respective parents, the address
 of Petitioner No.2 continues to be shown as being in Gurgaon.
 3. What is striking is that despite the SI finding on enquiry that the two
 Petitioners were husband and wife living in the same place, he
thought it fit to
 go ahead and register an FIR for an offence under Sections 294 read
with 34 IPC.
 Although the FIR refers to ?passers by? being annoyed not a single name of any
 ?passer by? is found mentioned. Learned counsel for the Petitioners adds that
 the so-called investigation of the FIR has resulted in a charge sheet being
 filed on 30th January 2009 which does not refer to a single statement of any
 passer by recorded under Section 161 CrPC. To say the least, the FIR even when
 taken on its face value, does not make out a case for the offence
under Section
 294 read with 34 IPC. It is inconceivable how, even if one were to
take what is
 stated in the FIR to be true, the expression of love by a young
married couple,
 in the manner indicated in the FIR, would attract the offence of ?obscenity?
 and trigger the coercive process of the law.
 CRL.M.C. 283 of 2009
 page 3/4
 4. Notice.

 5. Mr. Behl, learned APP for the State accepts notice.

 6. The trial court record be produced before the next date of hearing.

 7. Mr. Behl further states that he will also take specific instructions on
 the action taken on the complaint made on 27th October 2008 by the Petitioners
 to the Commissioner of Police which appears to have been received in
the Office
 of the Commissioner of Police on that day itself by Ms. Shalini
Singh, DCP, S/W.

 8. There will be a stay of further proceedings arising out of FIR No. 581
 of 2008 till further orders.

 9. List on 25th February 2009.
 10. Order dasti.


 S.MURALIDHAR, J
 FEBRUARY 02, 2009
 dn
 CRL.M.C. 283 of 2009
 page 4/4


On Wed, Feb 4, 2009 at 8:32 PM, A Khanna <A.Khanna at sms.ed.ac.uk> wrote:
> hi all,
>
> i was intrigued by a news article from the bbc, pasted below, on a
> case from the delhi high court where a charges of obscenity against a
> couple kissing in public were dropped. thought this might be an
> interesting juxtaposition with the ram sena's attacks in Mangalore. if
> any of the lawyers on the list could get hold of the actual judgement,
> do let me know, it would be interesting to read. and while i suspect
> that Justice Muralidhar did not treat the factum of marriage as the
> basis for his judgement, this report suggest as much. if this is the
> case, it begs the question of what if they weren't married? what if
> they were both women, or both men, or, one or both otherwise? is it
> that the form of heterosexual marriage enables the delicious act of
> kissing to be read as 'love'? and must a kiss be a manifestation of
> 'love' to be 'acceptable' in public, or more precisely, to not be
> considered an offense of obscenity?
>
> its a sad time when the upholding of the right to heterosexual
> monogamous legally sanctioned love amounts to a radical act.
>
> kisses,
>
> akshay
> ....
>
> India couple's kiss 'not obscene'
>
> A court in India has dismissed criminal proceedings against a married
> couple charged with obscenity for allegedly kissing in public in the
> capital.
>
> The Delhi high court judge wondered how an "expression of love by a
> young married couple" could attract an obscenity charge.
>
> Police arrested the couple - a 28-year-old man and a 23-year-old woman
> - for kissing near a station last September.
>
> Public displays of affection are still largely taboo in India.
>
> The police in Delhi had begun criminal proceedings against the couple
> for "sitting in an objectionable position near a metro (railway
> station) pillar and kissing due to which passersby were feeling bad".
>
> The maximum punishment for committing an "obscene act" is three months
> in prison.
>
> Judge S Muralidhar quashed the criminal proceedings.
>
> He said that even if police reports were accurate "it is inconceivable
> how... an expression of love by a young married couple would attract
> an offence of obscenity and trigger the coercive process of law".
>
> The judge expressed surprise that the couple had been picked up and
> charged by police despite officers being told that they were married.
>
> Controversies
>
> Reports say the couple denied in their petition to the court they were
> kissing. They said they were taking self portraits on their mobile
> phones.
>
> The lawyer who contested the case for the couple told a Delhi
> newspaper: "Obscenity charges are attracted when an act is so obscene
> that it encourages depravity or annoys the public.
>
> "In this case both these contents are missing, because the charge
> sheet is silent on any passersby as originally claimed."
>
> Kissing in public in India has triggered controversies in the past.
>
> In 2007, Hollywood actor Richard Gere sparked protests in India after
> kissing Celebrity Big Brother winner and Bollywood actor Shilpa Shetty
> at an Aids awareness rally in Delhi.
>
> The protesters said Gere had insulted Indian culture by kissing the
> hand and face of the actress.
>
> In 2005, a court in Rajasthan imposed a fine of $22 on an Israeli
> couple for kissing after getting married in a traditional Hindu
> ceremony in Pushkar.
>
> Priests were offended when the couple kissed and hugged during the
> chanting of religious verses.
>
> In 2004, Bollywood film star Kareena Kapoor began legal proceedings
> against a tabloid newspaper that published photos of her kissing her
> co-star.
>
> She and Shahid Kapoor said the photos were doctored and were not of them.
>
> Story from BBC NEWS:
> http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/south_asia/7866478.stm
>
> Published: 2009/02/03 09:47:14 GMT
>
> --
> The University of Edinburgh is a charitable body, registered in
> Scotland, with registration number SC005336.
>
>
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