Wednesday, 6 February 2019

Whether wife can prosecute husband if he is keeping unnatural sexual relationship with adult male?

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 1 W.P. (Cri.) Nbo.76 of 2016 & Others decided on 6.9.2018 has held section 377 of the Indian Penal
Code insofar as it criminalises consensual sexual conduct between
the adult of same sex, as unconsitutional. 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4470 OF 2012

Daniel Crasto Vs. The State of Maharashtra 

CORAM: Mrs.MRIDULA BHATKAR, J.
DATED: JANUARY 30, 2019



1. In this petition, the petitioner is challenging the order dated
23.10.2012 thereby confirming the order dated 5.1.2012 passed by
the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai,
rejecting the discharge of the petitioner under section 377 of the
Indian Penal Code. The petitioner is a co-accused who was
initially prosecuted under sections 498A, 377, 323, 504 r/w section
34 of the Indian Penal Code alonwith the co-accused.
2. The facts of this case in brief are as under:

One married woman filed complaint on 26.2.2019 against her
husband and the present applicant/accused and her husband got
married on 6.12.1994. In 2009, the couple had a son aged 6 to 7
years old. After 4 to 5 years of their marriage, she realised that her
husband is a gay and she opposed the parallel relationship of her
husband. However, he ill treated her and hence, she left the
house and started living with her father. Thereafter, again she
came back. However, though assured, she found that her
husband continued to keep his gay relationship with different
males. In early 2007, she found that her husband was having
sexual relationship with the petitioner accused and she also came
across her husband viewing a pornographic film of those two
whenever, he used to remember the petitioner/accused. She
found that her husband was not ready to stop his relationship with
the petitioner/accused but he ill treated her on a number of
occasions and therefore, she lodged the FIR on 26.2.2009 and the
offence was registered at C.R. No.59 of 2009 with Gamdevi police
station and pursuant to the same, the petitioner/accused alongwith
the husband of the complainant was prosecuted for a number of
offences. He moved an application for discharge before the
learned Metropolitan Magistrate, 40th Court, Girgaum. However,

the said Court rejected the said application. So, he moved
Revision application No.286 of 2012. The learned Adhoc
Additional Sessiosn Judge, Greater Mumbai by order dated
23.11.2012 partly allowed the said revision application by
discharging the accused from section 323, 504 r/w section 34 of
the Indian Penal Code but maintained the charge under section
377 of the Indian Penal Code. Hence, this petition.
3. Heard submissions and persued the FIR and other
documents. The complainant has grievance against her husband,
who is a gay and kept sexual relatioins with male friends i.e., the
petitioner. The Supreme court in the case of Navtej Singh Johar &
Ors. vs. Union of India 1 W.P. (Cri.) Nbo.76 of 2016 & Others decided on 6.9.2018 has held section 377 of the Indian Penal
Code insofar as it criminalises consensual sexual conduct between
the adult of same sex, as unconsitutional. 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. There are allegations against the husband
having unnatural sexual intercourse with her.
4. Under such circumstances, the order passed by the learned
Adhoc Additional Sessions Judge, Greater Mumbai dated
23.11.2012 refusing to discharge the petitioner/accused from the
offence punishable under section 377 of the Indian Penal Code is
hereby quashed and set aside. Accordingly, the petitioner/accused
is hereby discharged from section 377 of the Indian Penal Code.
5. Rule made absolute accordingly.
(MRIDULA BHATKAR, J.)

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