THE BOMBAY High Court on Wednesday discharged a man booked under Section 377 (unnatural offences) of the IPC, observing that if the persons involved are adults and had sexual relationship by consent, it does not constitute to be an offence.
The court order stated that a married woman had filed a police complaint against her husband and his alleged boyfriend in February 2009. The woman had got married in December 1994 and the couple had a son.
According to the prosecution, after four or five years of their marriage, the woman realised that her husband is gay and was involved with another man. She alleged that she went to stay at her father’s place when her husband started ill-treating her. But after sometime, she returned home.
The woman alleged that she then found that her husband was still involved with other men. In early 2007, she allegedly found her husband having sexual relationship with his boyfriend and watching a pornographic film on themselves.
When the husband refused to end the relationship and allegedly harassed her, the woman filed a complaint with the Gamdevi police. The husband and his boyfriend were booked under sections 377 (unnatural offences), 498A (husband or relative of husband of a woman subjecting her to cruelty), 323 (voluntarily causing hurt) and 504 (intent to provoke breach of the peace) read with 34 (common intention) of the IPC.
Following this, the boyfriend moved an application for discharge before the Girgaum metropolitan magistrate. The application was rejected. He then moved a revision application before the session court. In November 2012, the additional session judge partly allowed the revision application by discharging him from sections 498A, 323 and 504 read with section 34 of the IPC but maintained the charge under Section 377. He then moved HC seeking discharge. The court noted that last year, the Supreme Court has held Section 377 in so far as it criminalises consensual sexual conduct between the adult of same sex, as unconstitutional.
Justice Mridula Bhatkar said, “In the present case, both were having an extra marital consensual sexual relationship. Though it may be a ground for divorce on the ground of cruelty to the complainant, it does not constitute offence under section 377 because both are adults and had sexual relationship by consent.”