The arrest of a Bangalore-based techie under Section 377, which prohibits ‘carnal intercourse against the order of nature’, once again raises the spectre of a colonial-era law being misused.

According to Bangalore Mirror, the arranged marriage between the techie and his dentist wife was doomed from the start. While the two slept in separate rooms, the husband did not initiate any physical contact with his wife. Suggestions by the wife to seek marriage counselling were rebuffed and finally, the suspicious wife rigged hidden cameras in the house, while she herself left town for a visit to her paternal home.

The wife also filed a case of cheating against her in-laws for not disclosing their son’s homosexuality to her. “The techie’s parents have been booked," Sandeep Patil, deputy commissioner of police (central) confirmed to the press. However, the in-laws have not been arrested while investigations are under way.

Without undermining the anguish of the wife, the techie’s arrest demonstrates the urgency with which we need to scrap Section 377 of the Indian Penal Code (IPC). Did the techie lie to and cheat his wife? Going by her complaint, yes. Does she deserve justice? Most certainly. But by getting the husband arrested under Section 377—which carries a maximum punishment of life imprisonment—how does she get redressal?

“The law gives an opportunity to people to use and abuse the criminal justice system," says noted lawyer Vrinda Grover. “She needs to get out of this relationship by filing for divorce and demanding a huge sum of money from him for ruining her life. Getting him arrested is hardly a solution."

Introduced into the IPC in 1860, Section 377 has been a bone of contention with activists for some years now. In 2009, in response to a public interest litigation (PIL) filed by the NGO Naz Foundation, which works on HIV/AIDS-related issues, a two-judge bench of the Delhi high court ruled that the section did not apply to sexual relations between consenting adults.

But the jubilation within the lesbian, gay, bisexual and transgender (LGBT) community was short-lived when the decision was over-turned by the Supreme Court in December 2013 on the grounds that the decision to repeal or amend the section should be left to Parliament. In January this year, the apex court refused to review its judgment. And a curative petition—the final legal option available to the petitioners—has still to be heard.

In the meanwhile, Section 377 has been used in at least one more instance by an aggrieved wife to get legal redress. In March this year, a Delhi trial court heard a wife’s complaint that her husband had forced her to have anal sex, deemed ‘unnatural’ under Section 377. Lamenting the fact that there were no laws to prevent marital rape, the judge Kamini Lau noted that a sexually abused wife had every right to getting help and protection from the state. Using Section 377, the judge denied bail to the husband.

Despite evidence that marital rape is widely prevalent—a 2011 study by the Washington-based non-profit International Center for Research on Women found that one in every five Indian men admitted to forcing their wives to have sex with them. And despite recommendations from the Justice J.S. Verma Commission to make it illegal, marital rape remains a thorny issue that Parliament is reluctant to touch. A parliamentary standing committee report on the Criminal Law (Amendment) Bill, 2012, noted that marital rape, if brought under the purview of the law, would put the ‘entire family system…under great stress’.

This leads to a bizarre situation where husbands are free to rape their wives vaginally (and, in fact, denial of sex to their husbands can be used as grounds for divorce under ‘mental cruelty’). But if a husband and wife should choose to have consensual anal sex, he is liable to be prosecuted under Section 377, says lawyer Saurabh Kirpal.

In the absence of enabling legal provisions, lawyers sometimes use existing provisions to get justice for victims. For instance, until the Protection of Children Against Sexual Offences Act of 2012, lawyers would routinely invoke Section 377 to book perpetrators especially when their victims were boys.

You could certainly argue that the Bangalore techie should have shown greater courage to acknowledge his natural sexual inclinations and preferences at least to his parents, and certainly to any woman he intended to marry. But in a country where homosexuality continues to be socially stigmatized and legally penalized, he would not be the first allegedly homosexual man to agree to an arranged marriage under social and parental pressure.

“If being a homosexual is a crime, even disclosing that he was homosexual to his wife would have made him liable for arrest," says Grover. “If you removed the criminalization, then at least many other men would be able to be more honest."

The Supreme Court judgment notes that there was not enough evidence to show that Section 377 was being used to target, blackmail or harass gay men. In at least two cases after its regressive judgment, there is evidence that it was wrong.

Close