Booked for homosexuality in 2009, man discharged by Bombay High Court

Observing that while consensual same-sex and extramarital relationship may be considered grounds for divorce, the Bombay High Court (HC) on Wednesday discharged an accused charged under Section 377 of the Indian Penal Code (IPC) ruling that homosexuality is no longer an offence under the said law. The accused, who got relief from the court, had been charged with having a relationship with the complainant’s husband.

Originally targeted as homosexuality, Section 377 was partially struck down by the Supreme Court in 2018 following which the law applies only in the cases of sexual intercourse with minors, non-consensual sexual acts and bestiality.

The Bombay High Court bench of Justice Mridula Bhatkar was hearing a case against a Kalwa resident, who had been booked under Section 377 in 2009, after a woman alleged he was involved in an extramarital affair with her husband.

Justice Bhatkar discharged the accused and said, “In the present case, both [the Kalwa resident and the complainant’s husband] were having an extramarital, consensual, sexual relationship. Though it may be a ground for divorce available to the complainant, it does not constitute an offence under Section 377 because both are adults and had sexual relationship by consent.”

The Kalwa resident’s discharge plea had been previously rejected by a metropolitan magistrate at Girgaum in January 2012 and this decision was upheld by an ad-hoc additional sessions judge nine months later.

Bhatkar further added that as homosexuality had been decriminalised in a landmark ruling by a constitutional bench of the Supreme Court in 2018, the complainant couldn’t be considered a victim in this case. “The complainant wife is an aggrieved person, but she cannot be called a victim under Section 377 of the IPC,” the judge said.

In 2009, the wife of a Peddar Road resident and businessman had accused her husband of having an extramarital relationship with the Kalwa resident. The couple got married in December 1994, had a child who was seven years old in 2009 and according to the woman, her husband began his relationship with the Kalwa resident in 2007.

She also accused her husband of resorting to domestic violence. On February 26, 2009, Gamdevi police booked the businessman and the Kalwa resident under sections 498 (A) (cruelty at matrimonial home), 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of peace), Section 377 (carnal intercourse against the order of nature) and 34 (common intention) of the Indian Penal Code. At the time, Section 377 had not yet been struck down by the Delhi High Court.

In July 2009, the Delhi High Court ruled that Section 377 violated fundamental rights of citizens guaranteed under the Constitution of India. However, the Supreme Court reversed this decision in December 2013.

In 2016, the apex court agreed to review its judgment and a five-member constitutional bench delivered a landmark ruling in September 2018 holding that the application of Section 377 to consensual sexual relationships between adults was unconstitutional, irrational and manifestly arbitrary.