A day before the Supreme Court was scheduled to hear a curative petition on striking down Section 377, the Madras High Court expressed that homosexuality could be a ground for divorce.
“Why not the central government amend marriage laws to include the homosexuality as valid ground for divorce, as gays and lesbians cannot exhibit interest on the opposite sex which is required for consummation of marriage?” asked justice N Kirubakaran.
The court’s observation came while hearing two matrimonial discord cases involving a gay man in one and a lesbian woman in the other. The judge noted that a lack of statutory recognition and protection for LGBT people had started affecting the very social institution of marriage.
Senior advocate Meenakshi Arora agreed, saying, “It’s been held that the sexual aspect is one part of the marital relationship that needs to be fulfilled. It can be read into the laws already in place -- it could be read as cruelty to the other party.”
Arora noted, however, that “the Centre can’t make homosexuality a ground for divorce without legitimising or recognising the status of a same-sex preference person. How can you recognise it in marital situations and then say that exercising that preference would be illegal? Both things must go hand-in-hand.”
Family lawyer Mridula Kadam clarified that under the Hindu Marriage Act, “sodomy is a ground, but if homosexuals get their rights, then obviously these kinds of issues of them marrying to hide their sexuality will not arise. Right now homosexuality is an offence, so people hide. There are so many cases where a gay person marries a straight woman because he is pressured by family and society. Decriminalising Section 377 will go a long way in stopping this kind of cases. Non-consummation of marriage is very hard to prove.”
The Madras HC judge also noted that “more than 30 countries, including a conservative nation like Ireland, have decriminalised homosexuality and legalised gay marriage by way of referendum” and further asked, “Could LGBT be considered as offenders merely for having exhibited their natural sexual orientation and their sexual acts, which are different?”
The judge wondered and said he was “shocked” to notice non-consummation of marriages because either of the spouses was either gay or lesbian.
Taking judicial note of the wide prevalence of same-sex relationships in the country, the judge impleaded the Union ministries of law and justice and family welfare as parties to the proceedings.
By a separate order, he also made the Law Commission of India a party to the case.
The judge sought to know whether the Centre had taken any decision on deletion of Section 377 from the statute book, as suggested by the Supreme Court in the Sureshkumar Koushal vs NAZ Foundation case, or whether it proposed to amend the section by introducing a provision to clarify that nothing contained in the clause should apply to any sexual activity between two consenting adults in private as per a 2009 judgment of the Delhi high court.