During the Supreme Court hearings on section 377 in March 2012, the court questioned how the section, which criminalizes same-sex intercourse as an unnatural offence, could be invoked against consenting adults in private. An unofficial transcript of the proceedings compiled by lawyers present in the courtroom quoted justice S.J. Mukhopadhaya as asking, “If it is in private, then who is the complainant?"

A recent incident in Bangalore shows how the section of the Indian Penal Code can cover consensual adult same-sex relations as well, even when conducted in private.

A man was booked under section 377 on 20 October, based on a complaint by his wife, Bangalore Mirror reported on Wednesday. The woman, a dentist by profession, fixed a camera in her home and allegedly taped her husband having intercourse with another man.

The couple had married a year ago and moved to Bangalore earlier this year. The husband is a software engineer in a software and information technology company.

The woman alleged in her first information report (FIR), a copy of which is with Mint, that she placed a camera in the hall of her home on 1 October 2014, before she left for her parental village. When she returned a week later, she saw photographs of her husband involved in “homosexual acts with some man", she stated in the FIR.

The woman has also alleged that her husband’s parents knew of his sexuality and had cheated her by getting him married to her. Her complaint is accompanied by a CD with images of her husband and his alleged lover.

The woman stated that she began questioning her husband’s sexuality. “As I was working as a dental doctor, I got to know (of) several unknown men coming home when I am not at home and when I asked my husband about the same I did not a get a fitting reply," the FIR stated.

It also mentions that the marriage had not been consummated. The woman decided to record the goings-on while she was away from their home.

Danish Sheikh, a lawyer with the Alternative Law Forum, and who works for lesbian, gay, bisexual and transgender (LGBT) rights, said, “In its deliberations, the Supreme Court noted that the dangers of section 377 existed only through blackmail and extortion. It was argued that it could be misused against consenting adults, violating their right to privacy and autonomy, but the court didn’t accept this argument then. This is what has happened here."

A two-judge Supreme Court bench comprising justices G.S. Singhvi and S.J Mukhopadhaya delivered a verdict last December which upheld the constitutionality of section 377, which had been read down by the Delhi high court in 2009 as not applying to consensual adults.

“Section 377 has been used as a tool of harassment and blackmail against LGBT individuals. This case however, is a clear-cut case where a consensual sexual matter in private is being prosecuted by the state," he added.

Queer feminist activist Chayanika Shah said that while invasion of privacy is a matter of concern for both same-sex and heterosexual relationships, and needs to be opposed in each case, it is vital for communication between partners to be brought to the forefront of the debate.

At the same time, the case also points to the problem of forced marriages of LGBT persons. Pallav Patankar, a gay rights activist and director of HIV programmes at gay and transgender sexual health organization The Humsafar Trust, said, “We see many cases where gay men have got married under pressure from their families. It is our endeavour to make them realize that they have wronged a woman by marrying her. We have to respect women’s rights."

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