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

[siddharth narrain]

That was an incredible read lawrence,

Here's the order of Justice Muralidhar of the Delhi High Court in this case,


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 Thu, Feb 5, 2009 at 10:41 AM, Lawrence Liang <lawrence at altlawforum.org>wrote:

> Hi all
>
> Apologies for a long post, but hope it is of some interest to those of us
> invested in the physical and smbolic acts of kissing, as well as of the
> law.
>
> I think given the current atmosphere of moralpolicing, this is a very
> welcome order, (the judge begins by acknowledging the troubling nature of a
> case like this being brought t cout, and ends by saying that it is
> inconceiveable how an expression  of love, albeit between a married couple,
> could be obscene)
>
> I think the question of whether it is radical or not is a misdirected one.
> It instead might be more useful to use the order as a way of thinking about
> the relationshiop of law to diverse states of being, of emotional
> expression
> and the limits of the law.
>
>
> The question is not whether it is a radical act or not, rather it may be
> understood in terms of how is that the law comes to judge a kiss, and in
> doing so, what conceptions of the kiss does it evoke: Does it  have a rich
> understanding of the kiss or a poor one? If the entire issue is indeed
> decided on the basis of the appropriate space of intimacy, whether it
> should
> be conducted publicly or privately, then where do we turn to even
> understand
> the Laws of intimacy? If the kiss is the object of objection, then what are
> the ways in which we deal with this object?
>
> For instance do we deal with it, on its own terms ( a good kiss v, a bad
> one, a real kiss v. a fake one) or do we have to constantly mobilize other
> resources (Public v. private, married v. non married?)  If kissing in
> public
> is against the idea of Indian culture, what are the sources beyond some
> general invocation of Indian culture that is being relied on? Because given
> the publicness of our erotic temples, surely it cant be the case that
> public
> display of erotic affection is a civilizational anomaly.
>
>
>
> I would like to draw your attention to a marvelous article which addresses
> many of these questions.
>
>
>
> *Peter Goodrich, The Laws of Love: Literature, History and the Regulation
> of
> kissing: 24 N.Y.U Rev. L & Soc. Change, 183(1998)*
>
>
>
> For the benefit of those who may not have access to the article, I am
> summarizing and  extracting from the article which opens out exciting ways
> in which we can think of the relationship between the kiss and the law.
>
>
>
> Goodrich argues that the while the law is often called upon to address the
> appropriateness of intimate erotic acts occurring in public and
> quasi-public
> spaces, we must acknowledge that the lawyers are also not, by any training
> or special knowledge the best legislators of kissing. As a result, when
> such
> disputes do arise, the consequences are that the results that emerge are
> usually couched in negative terms. Thus certain forms of affection are
> banned from public spaces; The ability to determine these matters suggest
> that the law has a theory of the role of eros and intimacy in making of a
> public world;
>
>
>
> But if the law is a specific body of knowledge that derives its authority
> over the world through memory ( as enshrined as precedent), then the
> question is where do such precedents lie?
>
>
>
> Goodrich argues that the common law may not be the best site for
> understanding the kiss, but it is not an act whose regulation is beyond
> comprehension or even historical evidence.
>
>
>
> Goodrich then lays out a fascinating history of the regulation of kissing,
> particularly as it developed in the history of Christianity, and then in
> medieval  Europe in the courts of love and literature.
>
>
>
> According to him, Christianity, which was a religion of the 'logos' or word
> and connected Truth with the "sermo humilis" and the pentecostal speaking
> in
>
> tongues, and knowledge came from the lips. On of the early Christian
> commentaries speaking on the Song of Songs, says that the kiss was the
> principal form of salvation in that it was through the kiss of knowledge
> that the word would be passed from Christ to his followers. Thus, when the
> Song of Songs famously importunes "[l]et him kiss me with the kisses of his
> Mouth", it is illumination of the soul, divine grace, for which the
> supplicant pleads."
>
>
>
> The kiss was thus the union of the word and the soul. In the exchange of
> breath that takes place in kissing, two souls would intermingle and unite.
> The insufflation of the kiss was an inhalation of knowledge, and
> constituted
> an exchange that was spiritual rather than sexual, and institutional rather
> than carnal. Si in early Christianity, the kiss aided in the development
> and
> intensification of community which leads the faithful eventually to a
> knowledge of God.
>
>
>
> Goodrich then traces the rather elaborate doctrinal history that
> accompanies
> this idea of the sacred character of the kiss. He shows us of rinstance a
> taxonomy of kissing which ranges from the osculum pads, or kiss of
> brotherhood, which was a physical kiss, a kiss on the mouth, but one which
> was exchanged as a sign of truth and of peace. Then you have the spiritual
> kiss, a kiss that took place not by virtue of the meeting of mouth or
> contact of lips but by the joining of the affections of the mind, and it
> was
> this kiss that enabled believers to mingle and unite in the single body of
> the Church. Finally, the highest level of the kiss, the intellectual
> embrace, was in a sense the prolongation of the spiritual kiss. A spiritual
> kiss of sufficient intensity and duration would transcend the bodies of
> those that embraced and rather than being the friend or Christian brother
> that was kissed and being kissed it was now Christ who was kissed and being
> kissed through the
>
> creature or lips of the believer.
>
>
>
>
>
>
>
> But here comes the catch, stages of the Christian kiss, could be mimicked
> by
> the unfaithful and so lead not to salvation or knowledge but to a corporeal
> desire marked by ignorance and deceit. The false kiss treated the lips of
> the other not as the sign of, and means of access to, an invisible grace,
> but rather as an end in
>
> themselves, as sensual presence and the means of a purely carnal embrace.
>
> the sin of idolatry was depicted as being that of allowing sight to
> terminate upon the physical representation or plastic form of faith, so too
> the plain kiss which when used by non believers, it became a false kiss,
> which ended its quest for satisfaction upon the body of the
> subject kissed. The face of the other here became a false image, an idol
> upon which desire in the form of the kiss both doted and fed.
>
>
>
>
>
> Goodrich's interest in laying out he history of the regulation of kissing
> as
> it emerges in Christianity is also to understand the development of the
> language from where kisses are understood, and what kind of inheritances,
> the modern legal system may have drawn from in their understanding of the
> regulation of amorous activities.
>
>
>
>
>
>
>
> He says
>
>
>
> *"In contemporary and more pluralistic doctrinal contexts, the specific
> resonances of impurity, heresy, or paganism, attached to false kisses is
> less
> important than the language and classificatory schemata through which the
> art and practice of kissing was made accessible and available to some
> species of judgment. This early law on kissing had a remarkable and
> peculiarly
> radical theoretical perspicuity. Specifically, it recognized and
> acknowledged an erotic charge, a substrate of desire or indeed libidinal
> economy,' that not simply underpinned but literally constituted community.
> Desire pervaded the social, and eros, as motive or as expression, was
> acknowledged to be present in all institutional relationships as a
> dimension
> not only of power but of speech as such. The importance of the early law
> of kissing thus lies primarily in its ability to acknowledge and address
> the
> role of desire in all forms of social contact or institutional intercourse.
> So
> too, rather than attempting to deny or exclude public expressions of erotic
> desire, the doctrine of kissing attempted rather to understand and map an
> art and practice of embrace that both acknowledged the pervasive value of
> desire and limited inappropriate forms of its expression through a code, an
> epistemic, of the relation of kissing to truth. Love, in other words,
> required
> expression, and this was recognized to be as true of the polity as of the
> domestic sphere. It remains to point out that in the literary tradition of
> the
> courts of love, this insight into the relation between desire, community
> and
> knowledge, gains further and vivid elaboration. In kissing, in tasting the
> other,124 we come to know them in their difference and in their desire, and
> we come also to know what is possible, what lies in the future of our
> love".
> *
>
>
>
> Goodrich then goes on to examine the regulation of the kisses in courtly
> love, in literature and in the fascinating courts of love.
>
>
>
>
>
>
>
>
>
> He writes of a mid-fifteenth century case reported in Martial d'Auvergne,
> Les Arréts D 'Amour, which was heard before the Court of Flowers, where a
> woman complained that she had been amongst friends in a public garden when
> her lover had happened to come upon her and had joined her. According to
> her
> complaint, he had come up beside her and "pretending to want to say
> something private in her ear, he had lifted the hood of her cape and
> suddenly had kissed her.""'
>
>
>
> Her complaint was that this kiss had embarrassed her in front of her
>
> friends. It was, at least in her argument, to be treated as if it had been
>
> stolen in public: it was larrecin publique or public larceny of a kiss. Her
>
> request to the Court was that in the future her lover should be forbidden
> to
>
> approach her or touch her in public."' For his part, the impugned lover
>
> claimed that when he chanced upon his lover he took the opportunity to
>
> whisper declarations of love in her ear and while doing so had slipped. In
>
> consequence his lips had brushed against her ear and her cheek. This could
>
> hardly, in his view, be regarded as a kiss."'
>
>
>
> Upon deliberation the Court held that the complaint was badly made.
>
> It could not be public theft of a kiss for a lover to surprise his beloved
> with
>
> so innocent and amorous a declaration and act. A lover should not be
>
> embarrassed by a public kiss but should rather welcome the attention and
>
> the honesty of the expression. It was ordered that when the couple next
>
> met in public the woman should kiss her lover openly and freely.
>
>
>
> In his commentary on that case, Benoit de Court argues that the laws
>
> of love had always recognized the finely marked differences between
> different types of kiss. Thus a kiss between lovers in an open place was a
> legitimate and desirable expression of affection, provided that the kiss
> was
> not
>
> overlong or too salacious. It was not theft, he concluded, publicly to kiss
> a
>
> lover, "so long as the hands did not wander lasciviously, and so long as
>
> there was no biting of the lips."
>
>
>
> The kiss was thus held to belong quite properly within the public
>
> sphere, as also within the institution, and should not be hidden or furtive
>
> but rather declared and indulged. The domain of love, therefore, did not
>
> recognize arbitrary divisions between private and public, or between
> intimacy and institution. The kiss belonged to an economy of desire that
> both subtended and exceeded the public domain of secular or venal
> interaction.
>
>
>
> Kissing was the usual form not only of entry into the domain of love but
> more formally of sealing the agreement of love or alliance d'amour whereby
> lovers committed themselves to each other and publically declared an
> undying
> allegiance to the cause and space of their mutual desire.
>
>
>
> Goodrich's argument is simply, that the questions of love are best judged
>
> according to laws of love. Simple, and indeed alliterative, though this
> proposition might appear, its implications for legal thought are radical.
> That love should have its laws means at the very least that the ailing
> modern concept of a single jurisdiction and uniform agonistic procedure for
> all legal cases should be abandoned explicitly. At its simplest, it does
> not
> make sense to litigate emotions as if they were proprietary benefits or
> duties. Nor does it speak well of the legal enterprise to assume that a
> substantive law that historically has ignored the emotions and left the
> sphere of intimacy to the private realm, to the law of the father, is the
> appropriate or only source of precedents for the development of the rules
> that are to govern the expressions of desire in the public world.      -
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