More than two years after the Delhi high court decriminalised consensual gay sex, a Girgaum magistrate's court has rejected a discharge application filed by a man booked for having 'unnatural sex' with another man.
In 2009, the Delhi high court had read down Section 377 of the Indian Penal Code (IPC) that defines "unnatural sex" ruling that consensual gay sex between adults was not an offence. An appeal against the order is pending in the Supreme Court, which has not stayed the Delhi high court order.
In Mumbai, the discharge application was filed by Rommel Fernandes (name changed), a merchant navy officer. Fernandes was allegedly the gay partner of Anand Gupta (name changed), a Peddar Road businessman. Gupta's wife of 17 years had filed a police case against her husband and Fernandes for having "unnatural sex" in February 2009. Gupta and his wife have a nine-year-old son.
The police booked Fernandes and Gupta under Section 377 of the IPC, Section 498A (domestic violence) and criminal intimidation. The maximum punishment under Section 377 is life imprisonment.
Fernandes cited the Delhi high court order to seek discharge in the case. The court, however, did not accept the argument.
"Section 377 of IPC is still alive in statute. There are sufficient allegations against both accused. In the premises (sic), prima facie case is against accused," additional chief metropolitan magistrate UK Aher stated in his order dated January 5.
"The Delhi high court judgment has held that gay sex amounts to an offence only if it involves a minor victim. The Supreme Court has not granted a stay on the order. I will challenge the magistrate court's order in the higher courts," said advocate Vivek Kantawala, who appeared for Fernandes.
Lawyers said the 2009 judgment had persuasive value in city courts as well. "The 2009 Delhi high court judgment has a bearing on the Bombay high court, and therefore all the courts in Maharashtra," said advocate Anand Grover, who argued for petitioners, Naaz Foundation, before the Delhi high court.
Other lawyers said territorial jurisdiction of the judgment was a grey area. "There is a judgment of the Supreme Court, which states that if one high court strikes down a law, it is struck down throughout the country. Also, article 266(2) states that all high courts have territorial jurisdiction throughout the country. This order is worth challenging in the higher court," said Mihir Desai, a human rights lawyer.
The magistrate, however, discharged Fernandes under section 498A, which deals with domestic violence.