The Bombay high court on Wednesday stayed criminal proceedings against a man from Kalwa for being in a physical relationship with his male partner, in view of the Delhi high court’s landmark ruling in 2009 decriminalising consensual gay sex.
John had moved high court after his plea to be cleared of charges under section 377 (unnatural sex) of the Indian Penal Code was rejected by Girgaum magistrate court and later by a Mumbai sessions court.
Proceedings were initiated by Gamdevi police against John (name changed) after his partner’s wife lodged a complaint on February 26, 2009. His partner is an entrepreneur who stays on Peddar Road and has an 11-year-old daughter. The partner’s wife has also accused him of domestic violence.
According to her statement, her husband met John sometime in 2007 at a gay party. After that, he neglected her and started staying out of the house for several days on some pretext or the other. Sometime in January 2008, she found a CD with a recording of her husband having sex with John. Her husband had filmed them together, so that he could watch it whenever he missed John.
She had also submitted the CD to the Gamdevi police when she filed the domestic violence complaint. The police then booked her husband and John under sections 498 (A) (cruelty at matrimonial home), 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of peace) and 34 (common intention) and 377 of the Indian Penal Code. In February 2010, the police completed investigations and filed a charge sheet against the duo in the magistrate court. Three months later acting on a plea filed by John, the magistrate court cleared him of charges under section 498(A) – as he has not part of the woman’s family, but his plea to discharge him from other sections was turned down.
He had then appealed before a sessions court contending the magistrate should have cleared him of charges under section 377, in view of the Delhi high court’s ruling.