Bombay HC: Section 377 IPC and Marital Disputes: Distinguishing Grounds for Divorce from Criminal Offence

Heard submissions and pursued the FIR and other documents. 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 India1 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. There are allegations against the husband having unnatural sexual intercourse with her. {Para3}

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 4470 of 2012

Decided On: 30.01.2019

Daniel Crasto Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: MANU/MH/0239/2019,AIRONLINE 2019 BOM 195.

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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

Article:

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).

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Transformative Constitutionalism: A Catalyst for Social Change in India

 Transformative constitutionalism is an evolving concept that underscores the role of a constitution as a powerful instrument for social change, particularly in societies grappling with historical injustices and inequalities. In the context of India, this approach emphasizes not just the legalistic interpretation of constitutional provisions but also their potential to foster equality, dignity, and justice. The Indian Supreme Court has played a pivotal role in this transformative journey through various landmark judgments that reflect the principles of transformative constitutionalism.

Key Features of Transformative Constitutionalism

Transformative constitutionalism is characterized by several key features:

1. Promotion of Social Change: At its core, this concept aims to engender societal transformation by embedding values such as liberty, equality, fraternity, and dignity within the legal framework.

2. Judicial Activism: The judiciary is crucial in interpreting constitutional provisions in ways that promote these transformative ideals, often transcending mere legal formalism to address broader social issues.

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Law as an Instrument of social Change in India: The Role of Statutory Law and Supreme Court Judgments

Law is not merely a set of rules; it is a powerful instrument of change that shapes society’s values, norms, and behaviors. In India, statutory laws and judicial interpretations play a pivotal role in addressing social issues and promoting justice. This article explores how Indian law facilitates social transformation through legislative reforms and landmark Supreme Court judgments.

The Legislative Framework: Statutory Law as a Catalyst for Change

Indian statutory law is designed to reflect the evolving needs of society. The Constitution of India, adopted in 1950, serves as the foundational legal framework that promotes social justice and equality. Over the years, it has been amended to adapt to changing societal realities, demonstrating its role as a living document responsive to contemporary challenges.

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Would kissing on lips and touching private parts of a minor be an offence under S. 377 Penal Code?

The statement of the victim as well as the First Information report prima facie indicate that the Applicant had touched the private parts of the victim and had kissed his lips. In my considered view, this would not prima facie constitute offence under section 377 of the Indian Penal Code.

 IN THE HIGH COURT OF BOMBAY

Bail Application No. 3731 of 2021 and Interim Application No. 1408 of 2022 in Bail Application No. 3731 of 2021

Decided On: 05.05.2022

Prem Rajendra Prasad Dubey Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Anuja Prabhudessai, J.

Citation: MANU/MH/1740/2022

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Good legal article on Criminalization of Animal Rape

Submitted by

• Archit Uniyal
•  1st degree connection
• Archit has a account

3rd Year Student at Jindal Global Law School

• Dehradun, Uttaranchal, India 

• 
  

    Why Animal Rape should be Criminalized

On 17^th November 2018 in Malwani area, Mumbai, 4 men who were reportedly drugged brutally gang raped a male dog, leaving him with mutilated genitalia. The dog was found the next day bleeding heavily and when a woman tried to offer him food, he started yelling and won’t let anyone touch him. The woman was informed by an auto driver that when he found the dog, his mouth was gagged, and front legs were tied while being sexually tortured. The dog succumbed to the injuries on 21^st November.

Cruelty against animals

Article 11(1)(a) of the Prevention of Cruelty to Animals (1960) defines animal cruelty as - When any person― (a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated.

Section 377 of the Indian Penal Code (1860) defines unnatural offences – a person shall be punished with imprisonment for life or for a term that may extend to 10 years if has voluntary carnal intercourse against an animal.

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Supreme Court decriminalised all consensual sex among adults in private including homosexual sex

We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and

(v) The decision in Koushal stands overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 76 of 2016, 

Decided On: 06.09.2018

 Navtej Singh Johar  Vs. Union of India (UOI) and Ors.

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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

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Ratio of judgment of SC on Homosexual

Supreme Court: While discussing the constitutionality of Section 377 of the Indian Penal Code, 1860, the court in its landmark judgment set aside the verdict of Delhi High Court and held that Section 377 I.P.C does not suffer from the vice of unconstitutionality. The 2- judge bench of Hon'ble G.S. Singhvi and S.J. Mukhopadhaya. JJ, while relying upon number of Indian judgments said that unless a clear constitutional violation is proved, the Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need. In relation to the “acts” which fall under the said provision, the Court stated that the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed. The Court held that Section 377 I.P.C would apply irrespective of age and consent and it does not criminalize a particular people or identity or orientation, It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation. Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. The Court added that Section 377 neither mandates nor condones harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. [Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No.10972 of 2013, decided on December 11, 2013]

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