Is Kissing Defined Obscene

I know section 294 and act against obscenity in public places but is kissing defined as obscene somewhere?

Answer (1)

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There is no correct answer to this question under current situation. Most of the charges against such act are bought under Section 294 of the Indian Penal Code (IPC). Section 294 of the IPC states: Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, ballad or word, in or near any public place,shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

The main ingredient of the section are:

i) It should cause annoyance to the other (sufficient evidence in form of witness from passer by must be taken)

ii) The act itself should be obscene in nature

iii) The act must have been done in a public place.

In A & B vs State Thr. N.C.T. Of Delhi & Anr. on 25 May, 2009, the Delhi High Court made an observation stating, "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." Obscenity has not been defined in the section. However, one can take the cue from the meaning given in Section 292 of the IPC, which states "a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it." The law related to obscenity in India was based on the ancient Hicklin test till early this year. However the Supreme Court in Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014, discarded the age old Hicklin test and settled for what is known as the "community standard" test. "Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.” Now, coming the question of what are contemporary community standards. Obviously, the standards will highly vary from one area to another and depends on the context of the surrounding and the average person living in the area. While, it might not be considered illegal in upscale posh areas in the metros, it still might be considered illegal as not complying to the community standards in a village. Moreover, movies are considered to be a true reflection of the society. If you consider the number of movies which are granted U or U/A certificates and have kissing scene, it is very unlikely that kissing is considered to be obscene (may be disliked but not obscene) by the society.

Answered on 28 Sep 2018

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