Discharging a man accused under Section 377 IPC, the Bombay High Court observed that extramarital consensual sexual relationship is not a criminal offence, in view of Supreme Court judgment in Navtej Singh Johar vs. Union of India.
Long back in 2009, a woman had filed a complaint against her husband and his gay partner. According to her, after 4 to 5 years of their marriage in 1994, she realised that her husband is gay and she opposed the parallel relationship of her husband. She alleged that her husband continued to keep his gay relationship with different males, including the accused. She also said that her husband was not willing to stop his relationship with them.
The application seeking discharge by the accused (husband's alleged gay partner), was dismissed by the Magistrate court. The Sessions court, partly allowed revision petition and discharged him from offences under sections 323 and 504 of the Indian Penal Code but maintained the charge under section 377 IPC.
Justice Mridula Bhatkar said: "The complainant has grievance against her husband, who is a gay and kept sexual relations with male friends i.e., the petitioner. 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."
The court also said that, the woman, who filed the complaint, cannot be termed as a victim. It said: "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. There are allegations against the husband having unnatural sexual intercourse with her."
The bench then set aside the order passed by the Additional Sessions Judge, and discharged the accused.
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