The Bombay High Court recently had occasion to reiterate that consensual homosexual acts between adults, and adultery are no longer criminal offences in India, after the Supreme Court struck down Section 377 and Section 497 of the IPC last September.
The order was passed by Justice Mridula Bhatkar in a petition to quash a criminal charge under Section 377 of the Indian Penal Code (IPC) levelled against a man accused of having engaged in a homosexual adulterous relationship with the husband of the complainant.
Years after their marriage in 1994, the complainant submitted to have discovered that her husband was gay and that he had affairs with several men. On being confronted, the complainant alleged that her husband ill-treated her prompting her to leave him briefly. She also submitted that her husband carried on an affair with the petitioner, even after she returned.
This prompted her to lodge a criminal complaint against the petitioner under various offences including Section 377 of IPC, which penalises sexual activities “against the order of nature“. At the time of lodging the complaint, i.e. in February 2009, Section 377 penalised homosexual activity, regardless of whether the same was consensual.
It was only in July 2009 that the Delhi High Court read down Section 377 to decriminalise consensual sexual activity for the first time in the Naz Foundation case. However, in an appeal against the Delhi High court verdict, a Division Bench of the Supreme Court overturned this judgment in 2013 to reinstate sexual intercourse between homosexual persons as a criminal offence in the Suresh Kumar Koushal case.
Five years later, in September 2018, a Constitution Bench of the Supreme Court ruled that the criminalisation of homosexuality was unconstitutional. It, therefore, read down Section 377 to decriminalise consensual homosexual sex. Weeks later, the Court also struck down Section 497, IPC which had criminalised adultery.
In the meanwhile, the petitioner in this case continued to remain an accused in the complaint lodged against him back in 2009. Two rounds of litigation before the Metropolitan Magistrate and the Additional Sessions Judge saw to it that charges under Sections 323 (causing hurt), 504 (intentional insult to cause breach of peace), read with Section 34 (criminal act done by several with common intention) were dropped.
However, the retention of the charge under Section 377, even after the Supreme Court’s decriminalisation of homosexuality constrained the petitioner to approach the Bombay High Court to quash the same.
The High Court allowed his plea, noting that,
“The Supreme court in the case of Navtej Singh Johar & Ors. vs. Union of India 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 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.
In this case, there is no victim. The complainant wife is an aggrieved person but she cannot be called as a victim under section 377 of the Indian Penal Code…”
With this observation, the Court set aside the pending charge of Section 377, IPC and discharged the petitioner.