Can a Wife Prosecute Her Husband’s Male Partner for Unnatural Offence under Section 377 IPC?

Bombay High Court Discharges Accused from Section 377 IPC After Navtej Singh Johar Judgment: A Landmark Application of LGBTQ Rights

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The Bombay High Court, in the case of Daniel Crasto vs The State of Maharashtra (judgment dated 30 January 2019),citations: AIRONLINE 2019 BOM 195 delivered a significant ruling that directly applied the Supreme Court’s landmark decision in Navtej Singh Johar & Ors. vs. Union of India to ongoing criminal proceedings under Section 377 of the Indian Penal Code (IPC).

Background of the Case

The petitioner, Daniel Crasto, was prosecuted alongside the husband of the complainant under various sections of the IPC, including Section 377 (unnatural offences), Section 498A (cruelty), Section 323 (voluntarily causing hurt), and Section 504 (intentional insult), read with Section 34 (common intention). The complainant, a married woman, alleged that after several years of marriage, she discovered her husband was gay and maintained sexual relationships with other men, including the petitioner. She claimed her husband’s conduct amounted to cruelty and eventually filed an FIR in 2009, which led to criminal proceedings against both men.

Legal Proceedings

Daniel Crasto sought discharge from the charges, particularly under Section 377 IPC, which at the time criminalized “unnatural” sexual acts. The Magistrate rejected his application for discharge. On revision, the Sessions Judge discharged him from some offences but maintained the charge under Section 377. Crasto then approached the High Court.

Key Legal Issue

The central question before the High Court was whether consensual sexual relations between adult men could constitute an offence under Section 377 IPC, especially after the Supreme Court’s decision in Navtej Singh Johar (2018), which decriminalized consensual same-sex relations between adults.

High Court’s Reasoning and Decision

Justice Mridula Bhatkar, presiding over the matter, noted that the Supreme Court had declared Section 377 IPC unconstitutional to the extent it criminalized consensual sexual conduct between adults of the same sex. The High Court observed:

“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.”

The Court emphasized that while the wife may have grounds for divorce due to cruelty, consensual same-sex relations between her husband and the petitioner could not attract criminal liability under Section 377 IPC after the Navtej Singh Johar judgment.

Accordingly, the Court quashed the order refusing discharge and discharged the petitioner from prosecution under Section 377 IPC.

Significance

This judgment is notable for its prompt and clear application of the Supreme Court’s progressive stance on LGBTQ rights. It illustrates how constitutional principles and Supreme Court rulings are to be implemented by subordinate courts, ensuring that criminal law is not misused to prosecute consensual same-sex relationships between adults. The Court also clarified the distinction between criminal liability and grounds for civil relief (such as divorce on grounds of cruelty), reinforcing the evolving jurisprudence on personal liberty and equality.

       

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