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).
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.