Extra-Marital consensual homosexual relationship may be a ground for Divorce

Table of Contents

By Lovisha Aggarwal | February 06, 2019

CASE #

Daniel Crasto vs. The State of Maharashtra (decided on January 30, 2019)

COURT #

Bombay High Court (Mrs. Mridula Bhatkar, J.)

LAW POINT #

1. Extra marital consensual sexual relationship between adults of same sex may be a ground for divorce on the ground of cruelty to the wife. But it does not constitute offence under section 377 because both are adults and had sexual relationship by consent.

2. A wife whose husband has extra-marital consensual sexual relationship with same sex partner is an aggrieved person but she cannot be called as a victim under section 377 of IPC.

FACTS #

1994:   Husband and Wife got married and had a son together.

1999:   Wife realised that her husband is a gay and she opposed parallel relationship of her husband. He even ill-treated the wife, hence, she left the house. Thereafter, she came back.

2007:   wife found that her husband was having sexual relationship with the petitioner and that her husband watched pornographic videos of himself and petitioner whenever he misses the petitioner.

Husband ill-treated wife on a number of occasions and she alleged that he had unnatural sexual intercourse with her.

2009:   Wife lodged an FIR and her husband and petitioner were prosecuted for voluntarily causing hurt (section 323), intentionally insulting the wife to provoke her to break peace (section 504) and Unnatural offences (Section 377).

2012:   In a Revision Application, Petitioner was discharged from section 323 and 504 but maintained the charge under section 377 of the IPC.

2012:   Petitioner filed Writ Petition before Bombay HC

HELD #

ThePetitioner is discharged from section 377 of IPC because both are adults and had sexual relationship by consent.

RELEVANT LEGAL PROVISIONS: #

Indian Penal Code, 1860 #

  • Section 377: Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 2 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
  • Note: 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 unconsitutional.
  • Section 323: Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
  • Section 504: Intentional insult with intent to provoke breach of the peace.—Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
  • Section 34: Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Read the complete Judgement here