Same-sex marriages or relationships in India
Homosexual sex in India:
History of law relating to homosexuality in England:
The first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Such offences were dealt with by the ecclesiastical Courts.
The Buggery Act 1533, formally an Act for the punishment of the vice of Buggerie (25 Hen. 8 c. 6), was an Act of the Parliament of England that was passed during the reign of Henry VIII. It was the country’s first civil sodomy law. The Act defined buggery as an unnatural sexual act against the will of God and man and prescribed capital punishment for commission of the offence. This Act was later defined by the Courts to include only anal penetration and bestiality. The Act remained in force until its repeal in 1828.
The Buggery Act of 1533 was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. Oral-genital sexual acts were removed from the definition of buggery in 1817.
The Act was repealed by Section 1 of the Offences against the Person Act 1828 (9 Geo.4 c.31) and by Section 125 of the Criminal Law (India) Act 1828 (c.74). It was replaced by Section 15 of the Offences against the Person Act 1828, and ection 63 of the Criminal Law (India) Act 1828, which provided that buggery would continue to be a capital offence. With the enactment of the Offences against the Person Act 1861 buggery was no longer a capital offence in England and Wales. It was punished with imprisonment from 10 years to life.
Ancient or recent history in India prior to British colonial rule:
Ancient Hindu Scriptures do not throw any light as there is an no mention of such same sex relationships, what to speak of Marriage. Yajnavlkaya and Manu both have not spoken anything for or against homosexuality.
The history of unnatural offences against the order of nature and their enforcement in India during the Mogul time, British time and post independence, shows that the concept was introduced by the British and there was no law criminalizing such acts in India. It is based on Judeo- Christian moral and ethical standards which conceive of sex on purely functional terms, that is, for procreation.
The offence of sodomy was introduced in India on 25.7.1828 through the Act for Improving the Administration of Criminal Justice in the East Indies (9.George.IV).
Chapter LXXIV Clause LXIII: “Sodomy” – “And it be enacted, that every person convicted of the abominable crime of buggery committed with either mankind or with any animal, shall suffer death as a felon”.
The IPC along with Section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on 6.10.1860.
Decided cased about homosexuality in past century:
The IPC along with Section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on 6.10.1860. The understating of acts which fall within the ambit of Section 377 has changed from non-procreative to imitative of sexual intercourse to sexual perversity, from time to time.
The offence of Sodomy can only be committed per anum.
[Source: R. V. Jacobs (1817), Russ. & Ry. 331, C. C. R.]
Inserting the penis in the mouth would not amount to an offence under Section 377 IPC.
[Source: Govindarajula In re. (1886) 1 Weir 382]
But above view was not followed later by Orissa High Court. In this case a man inserted his genital organ into the mouth of a 6 year old girl. It was observed:
“8. In order to attract culpability under Section 377, IPC, it has to be established that (i) the accused had carnal intercourse with man, woman or animal, (ii) such intercourse was against the order of nature, (iii) the act by the accused was done voluntarily; and (iv) there was penetration. Carnal intercourse against the order of nature is the gist of the offence in Section 377. By virtue of the Explanation to the Section, it is necessary to prove penetration, however little, to constitute the carnal intercourse. Under the English law, to constitute a similar offence the act must be in that part where sodomy is usually committed. According to that law, the unnatural carnal intercourse with a human being generally consists in penetration per anus. In R. v. Jacobs : (1817) B&R 331 CCR and in Govindarajulu in re (1886) 1 Weir 382, it was held that the act in a child’s mouth does not constitute the offence. But in Khanu v. Emperor : AIR 1925 sind 286 it was held that coitus per os is punishable under the Section.
9. In terms of Section 377, IPC, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, commits the offence. Words used are quite comprehensive and an act like putting male organ into victim’s mouth which was an initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377, IPC.
[Source: Calvin Francis v. Orissa 1992 (2) Crimes 455, (Orissa High Court)]
“The principal point in this case is whether the accused (who is clearly guilty of having committed the sin of Gomorrah coitus per os) with a certain little child, the innocent accomplice of his abomination, has thereby committed an offence under Section 377, Indian Penal Code.
Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible”.
“Intercourse may be defined as mutual frequent action by members of independent organisation. Commercial intercourse is thereafter referred to; emphasis is made on the reciprocity”.
“By metaphor the word ‘intercourse’ like the word ‘commerce’ is applied to the relations of the sexes. Here also ‘there is the temporary visitation of one organism by a member of other organisation, for certain’ clearly defined and limited objects. The primary object of the visiting organization is ‘to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis’.” “But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy”.
“it is to be remembered that the Penal Code does not, except in Section 377, render abnormal sexual vice punishable at all. In England indecent assaults are punishable very severely. It is possible that under the Penal Code, some cases might be met by prosecuting the offender for simple assault, but that is a compoundable offence and in any case the patient could in no way be punished. It is to be supposed that the Legislature intended that a Tegellinus should carry on his nefarious profession perhaps vitiating and depraving hundreds of children with perfect immunity?
I doubt not therefore, that cotius per os is punishable under Section 377, Indian Penal Code.”
[Source: Khanu v. Emperor AIR 1925 Sind 286.]
“Carnal intercourse with a bullock through nose is an unnatural offence punishable under Section 377, Penal Code.”
[Source: Khandu v. Emperor (35 Cri LJ 1096: AIR 1934 Lah 261)]
In this case, there were three accused. Accused 1 and 2 had already committed the offence, in question, which was carnal intercourse per anus, of the victim boy. The boy began to get a lot of pain and consequently, accused 2 could not succeed having that act. He therefore voluntarily did the act in question by putting his male organ in the mouth of the boy and there was also seminal discharge and the boy had to vomit it out. The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offence under Section 377 IPC.
The act was the actual replacement of desire of coitus and would amount to an offence punishable under Section 377. There was an entry of male penis in the orifice of the mouth of the victim. There was the enveloping of a visiting member by the visited organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said that the act in question amounted to an offence punishable under Section 377.
What was sought to be conveyed by the explanation was that even mere penetration would be sufficient to constitute carnal intercourse, necessary to the offence referred to in Section 377. Seminal discharge, i.e., the full act of intercourse was not the essential ingredient to constitute an offence in question.
It is true that the theory that the sexual intercourse is only meant for the purpose of conception is an out-dated theory. But, at the same time it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature.
[Source: Lohana Vasantlal Devchand v. State (AIR 1968 Guj 252).]
“Even if I am to hold that there was no penetration into the vagina and the sexual acts were committed only between the thighs, I do not think that the respondents can escape conviction under Section 377 of the Penal Code. The counsel of the respondents contends (in this argument the Public Prosecutor also supports him) that sexual act between the thighs is not intercourse. The argument is that for intercourse there must be encirclement of the male organ by the organ visited; and that in the case of sexual act between the thighs, there is no possibility of penetration.
[Source: State of Kerala v. Kundumkara Govindan, 1969 Cri LJ 818, (Kerala High Court)]
Present Law relating to homosexuality:
Section 377 of Indian Penal Code, 1860 is as under:
377. Unnatural offences.: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Homosexuality law in India in 2014:
Presently there is no legislation in India, approving same sex marriage. However there was a colonial provision in section 377 of Indian Penal Code 1860 which provided for imprisonment for indulging in sexual activity other than heterosexual. Delhi High Court in a recent decision struck down this provision as far as consensual sexual activity of adults are concerned, in these words:
If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti- thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
( Source: Naz Foundation v. Government of NCT of Delhi (Delhi High Court)]
Delhi High court relied upon the judgement of US Supreme Court in Lawrence v. Texas, 539 U.S. 558, in support of its views. However Supreme Court of India disagreed with the decision and overruled Delhi High Court.
Supreme Court of India on homosexuality:
Supreme Court observed:
Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.
As regards the views of the courts in other countries, Supreme Court of India relied on following pessage of it’s previous decision in some other context:
Often statements of law applicable to foreign countries as stated in compilations and learned treatises are cited without making a critical examination of those principles in the background of the conditions that existed or exist in those countries. If we are not wakeful and circumspect, there is every likelihood of their being simply applied to cases requiring our adjudication without consideration of the background and various other conditions to which we have referred. On several occasions merely because courts in foreign countries have taken a different view than that taken by our courts or in adjudicating on any particular matter we were asked to reconsider those decisions or to consider them for the first time and to adopt them as the law of this country.
[Source: Suresh Kumar Koushal v. Naz Foundation. (Supreme Court of India)]
Thus, implicitly, the India is not ready for change. Not yet at least.
Mystery of Law and Justice 