[dropcap]I[/dropcap]N the first case of its kind, the Bombay High Court released a man who was booked on charges of homosexuality in 2009. Justice Mridula Bhatkar of the Bombay High Court by an order dated January 30, 2019, set aside the order passed by the Additional Sessions Judge convicting the petitioner/accused under Section 377 of the Indian Penal Code (IPC) and discharged him observing that: “if the persons involved are adults and had sexual relationship by consent, it does not constitute to be an offence”.
Background
The complaint was filed by a woman against her husband and the petitioner/accused (husband’s alleged gay partner) on February 26, 2009, at Gamdevi police station under Section 377 (now read down — insofar as adult, consensual same-sex relationships are no longer criminalised) and various other offences of the IPC.
The woman and her husband got married on December 06, 1994 and in 2009, the couple’s son was aged 6-7 years old. According to the complainant, after 4 to 5 years of their marriage, she realised that her husband was gay. She opposed the parallel relationship of her husband with the petitioner/accused. She accused her husband on counts of violence and ill-treatment, and, because of which she went to stay with her father.
She returned home to her husband after some time, but again in 2007, she found that her husband was in a sexual relationship with the petitioner/accused and realised that her husband was not ready to stop his relationship with the petitioner/accused. After the woman was ill-treated at a number of occasions by her husband, she lodged the FIR.
The petitioner/accused and the husband were prosecuted for a number of offences, including Section 377 of IPC.
The Metropolitan Magistrate of Girgaon Court rejected the application moved by the petitioner/accused for discharge.
However, the Ad-hoc Additional Session Judge, Greater Mumbai by order dated November 23, 2012, partly allowed the revision application and discharged the husband from Section 323 (voluntarily causing hurt), Section 504 (intent to provoke break of the peace) read with Section 34 (common intention) of the IPC, but maintained the charge under section 377 of the IPC against the husband and the petition/accused. After this, the petitioner/accused moved to the Bombay High Court seeking discharge.
Homosexuality no more a criminal offence
On September 6, 2018, the Supreme Court of India in Navtej Singh Johar & Ors. vs. Union of India, (2018) 10 SCC 1, read down Section 377 of IPC which criminalises consensual homosexual acts between adults. The five-judge Bench has declared the 157-year-old law unconstitutional, insofar as it criminalised consensual sexual acts of adults in private.
The Supreme Court held: “Section 377 IPC is irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights.” Also: “Section 377 has travelled so much that it has been destructive to LGBT community. It has inflicted tragedy and anguish, which are to be remedied.”
The Supreme Court in its judgment also emphasised that “the bodily identity and autonomy of the individuals should be constitutionally protected”. The Court said that a person should be able to share intimacy in private with a person of his choice; that forms part of his right to privacy.
The Court in its judgment also urged the government to give wide publicity to its order to counter the stigma associated with homosexuality.
In the present case, the petitioner/accused was convicted by the trial court, when homosexuality was a criminal offence. Now, the question arises whether the judgment of the Supreme Court has a retrospective effect on the cases which are undertrial, or in appeal?
Although, there is no constitutional backing for a judgment to have a retrospective effect, however, it is a general principle that judgment has a retrospective effect if it is specifically mentioned in it.
In Navtej Singh Johar (supra) judgment, it may be noted that the Supreme Court while decriminalising the offence of homosexuality specifically mentioned that the judgment can be relied upon in all pending matters. The Court had held that: “The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages”.
Bombay High Court discharged the ‘gay’ man
The Bombay High Court in its judgment dated January 30, 2019, discharged the petitioner/accused and observed that extramarital consensual sexual relationship is not a criminal office.
The Bombay Court noted that “the complainant has a grievance against her husband, who is gay and kept sexual relations with male friends i.e., the petitioner. The Supreme Court in the case of Navtej Singh Johar (supra), has held Section 377 of the Indian Penal Code insofar as it criminalises consensual sexual conduct between the adult of same-sex, as unconstitutional. In the present case, both (the husband and his alleged gay partner who is the petition/accused) were having an extramarital consensual sexual relationship. Though it may be a ground for divorce on the ground of cruelty to the complainant, it does not constitute an offence under Section 377 because both are adults and had a sexual relationship by consent”.
The Bombay High Court in its judgment dated January 30, 2019, discharged the petitioner/accused and observed that extramarital consensual sexual relationship is not a criminal office.
Justice Mridula Bhatkar in her judgment also reiterated on the “victimisation of the woman complainant” and noted that the woman, in this case, cannot be termed as a “victim”. The Court held that: “in this case, there is no victim. A complainant wife is an aggrieved person, but she cannot be called as a victim under Section 377 of the Indian Penal Code. There are allegations against the husband having unnatural sexual intercourse with her”.
Read the Bombay High Court order.
[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2019/02/05070912/BHC-Extra-Marital-Homosexual-Relationship.pdf[/pdfviewer]
Adultery and Homosexuality
The Supreme Court of India on September 27, 2018, struck down the criminalisation of adultery under Section 487 of IPC in Joseph Shine v. Union of India, (2018) 2 SCC 189. The Supreme Court, while decriminalising the 158-year-old colonial-era law of adultery, respected the “sexual autonomy” of the individual and held that: “Sexuality cannot be disassociated from the human personality. For, to be human involves the ability to fulfil sexual desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices. The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties”.
And further held that: “the interests of enforcing monogamy, protecting marriage and promoting marital fidelity, balanced against the interference of the State in the rights to privacy and sexual autonomy were clearly excessive and therefore failed the test of least restrictiveness”.
Criminalising adultery and homosexuality cannot help in saving a failing marriage, on the other hand; it only makes the relationship depressing and affects the mental health of the spouses.
It is almost impossible to protect the harmony and peace of a family where the spouses have different sexual orientations. The conflict generally intensifies and the outcome largely goes against the homosexual spouse.
In the present case, the Bombay High Court has correctly settled the proposition that an extramarital consensual gay relationship is not a criminal offence; just like how it is no more a criminal offence in case of a heterosexual spouses. However, such a relationship comes under the purview of “adultery” as a ground for divorce (civil wrong).
The Bombay High Court judgment signifies the social acceptance of homosexuality as human nature, and it is a step closer to recognising gender equality and different sexual orientations.
