The Bombay High Court on Wednesday stayed the framing of charges against a gay Merchant Navy sailor whose boyfriend’s wife had accused him of having unnatural sex with her husband.

Earlier the Sessions Court had discharged the sailor from section 498A (dowry demands) of the IPC, but upheld the charge of unnatural sex under Section 377.

Bombay HC gives reprieve to gay sailor
Representational pic

The wife, Shanta Sharma, had first registered an FIR against her husband Nitin (40) and the sailor, James D’Souza (37), on February 26, 2009.

In her statement to police, Shanta had said, “Nitin was having physical relations with me on one hand and with a male on the other hand. My in-laws told me his behaviour since childhood had been peculiar. He had gay habits since childhood. Sometimes I felt that he was in contact with gay people on the internet.”

Justice RV More of the High Court has now stayed the charge under Section 377, and expedited the trial. Before the Sessions Court, lawyers Kranti LC and Wesley Menezes appearing on behalf of D’Souza argued that the Delhi High Court had long ago decriminalized consensual sexual acts of adults in private.

However the Sessions Court, while upholding the charge under Section 377, noted that the ruling had been challenged in the Supreme Court, and the judgment was still pending. 

(Names of the litigants have been changed to protect identities)

What is Section 377?

The section of the Indian Penal Code criminalizes carnal intercourse ‘against the order of nature’ with any man, woman or animal. The section was read down in the landmark Naz Foundation vs. Government of NCT case of Delhi, which ruled that consenting adults committing a sexual act in private could not be considered a crime. The judgment was challenged in the Supreme Court, which reserved its verdict in the matter in February last year.