Section 377 of the Indian Penal Code (IPC) has been one of the most contentious provisions in Indian criminal jurisprudence. It criminalised “carnal intercourse against the order of nature” and though deliberately left imprecise, broadly covered all “non-procreative sexual acts”. This provision effectively criminalised all sexual activity that fell out of the heteronormatively accepted category of penile-vaginal penetration. Its effect was felt most by people engaging in consensual same sex relationships, and thus, the Supreme Court in Navtej Singh Johar v Union of India overruled Section 377 to the extent that it criminalised consensual same-sex relationships. It’s keeping in line with this landmark ruling that the Parliament has deleted the provision relating to 377 in the newly enacted Bhartiya Nyaya Sanhita.
While the law as it stands does not view sodomy as a criminal offence, it nevertheless remains a ground for divorce under various personal laws. Section 13(2)(ii) of the Hindu Marriage Act (HMA) provides that a wife may present a petition for divorce if the husband “has since the solemnization of marriage been guilty of rape, sodomy or bestiality.” Verbatim provisions can also be found in the Indian Divorce Act, and other legislations governing personal laws. It is at this juncture that the fault lines in the legal status of sodomy, between decriminalisation in Navtej and its existence as a marital offence, become apparent.
This paper focuses on HMA and discusses the legislative background of sodomy as a ground for divorce in marriage and its inseparability with the criminal offence of unnatural sexual offences. It discusses sodomy between husband and wife as a ground for the dissolution of marriage and highlights its inconsistency with the structural aim of the union and inconsistency with recent jurisprudence. The paper concludes by arguing for the removal of sodomy as a ground for divorce as a requirement for effectuating post-Navtej jurisprudence.
Legislative Backdrop
While the term “sodomy” has a strong correlation with homosexual identity, it can be traced back to the first colonial matrimonial legislation in India – the Indian Divorce Act, 1869. This Act was based broadly on the Matrimonial Causes Act, 1857 passed in England, and under Section 10, provided sodomy as a ground for divorce to wives. This clause was subsequently imported into the different personal law legislations including the post-colonial Hindu Marriage Act, 1955. The text of the Act, as it exists today, neither provides for the determination of consent of the parties nor provides clarity as to the scope of the provision. Nevertheless, consent has been read into the provision and its scope limited to the confines of marriage. The authority for the same can be traced back to a line of English cases that have been subsequently upheld by the Indian Courts.
The leading authority on the issue comes from a 1929 decision of the Court of Appeals in Statham v Statham, wherein the court held that in case the wife had condoned the husband’s conduct she would be viewed as an “accomplice” and could not be allowed to benefit from it. The decision has a strong foundation in public policy and criminal law’s view of sodomy prevalent at the time, as is evident from the court’s reasoning of holding the wife an “accomplice”. By relying upon the condonation reasoning, that forms an integral part of the Fault Theory, the court reads the element of consent under the ground of sodomy. This was further cemented by the Court of Appeals in its decision in T v T, wherein the court stressed the “quality” of the wife’s consent and held that the wife’s knowledge about the act had to be proved.
Inseparability With Criminal Law
The criminal offence of unnatural sex under Section 377 IPC and the marital offence of sodomy under Section 13 HMA are inextricably intertwined. The word “guilty” in Section 13(2)(ii) indicates a reference to a criminal offence. Such interpretation is supported by the placing of sodomy between rape and bestiality in the text of the section and was accepted by the Court of Appeal in Bampton v Bampton. Both provisions find their origin in Victorian perspectives of sex and the Acts that brought them to life were merely nine years apart. It follows from this perspective, that these offences were singled out from the plethora of criminal offences for being “sufficient evidence of a man’s depravity to justify the court granting his wife a divorce.” The requirement of conviction directly correlates with Section 377, thus cementing their intertwined relationship.
This intertwined relationship becomes explicit with the ruling of the High Court of Karnataka in KV Revanna v Suseelamma. Therein the court relies on Statham and holds that substantiating the claim of sodomy as a marital offence required the same level of evidence as in a criminal trial to substantiate a charge of unnatural sexual offence. This was subsequently upheld and applied by the court in Nirmala v Anthony Raj, wherein the trial judge was reprimanded for granting a decree of divorce without following the required evidentiary standards.
Spousal Sodomy
The invocation of sodomy as a ground for divorce by the wife requires her to prove that the act was non-consensual and that she did not act as an “accomplice”. This requirement runs into significant difficulty given that in a sacrosanct marital relationship consent always has to be assumed unless it is proved otherwise. Proving otherwise requires corroborated and cogent evidence and has to meet the standard of proof required in a criminal trial. It follows then that the consent of the wife for sexual activities is immaterial. Exception 2 to Section 375 IPC provides an exemption for cases categorised as ‘marital rape’. The existence of a marital relationship provides for a presumption of blanket consent and originates from Sir Hale’s proposition that “the husband cannot be guilty of rape committed by himself upon his lawful wife”. This exception has been upheld by the Supreme Court in Independent Thought v Union of India (while increasing the exception age to 18 years) and has been retained by the Parliament in the newly enacted Bhartiya Nyaya Sanhita.
The Supreme Court in Navtej Singh Johar v Union of India has held that “Section 377 so far as it penalizes any consensual sexual relationship between two adults cannot be regarded as constitutional”. This effectively settles that any sexual acts between any two consenting adults are “natural” and do not attract liability under Section 377. The court thus abolishes the binary distinction between “unnatural” and “natural” sexual acts, and it follows that any sexual acts, as long as they are consensual, would be deemed natural. All consensual sexual acts therefore must be treated equally and similarly and cannot be meted out differential treatments, even in the case of marriage.
Section 14 HMA provides a general requirement of a ‘waiting period’ of one year from the commencement of marriage to file for divorce. The section provides for an exception to this general requirement in cases of “exceptional hardship” and “exceptional depravity”. The High Court of Delhi in Rishu Aggarwal v Mohit Goyal has held that the grounds listed under Section 13(2)(ii) qualify as “exceptionally depraved conduct.” It follows then, that the one-year waiting requirement can be waived by the court in cases seeking dissolution of marriage on grounds mentioned under Section 13(2)(ii). This creates a situation in which sodomy is treated substantially differently from traditional penile-vaginal penetration. This distinction exists in the absence of any intelligible differentia and is inconsistent with the holding in Navtej.
Transposing the abolishment of the naturality distinction to a marital context provides that any sexual acts between husband and wife are “natural” and given the assumption of consent in marriage, are always consensual. This reasoning has been utilised by the High Court of Madhya Pradesh in Umar Singhar v State of Madhya Pradesh to hold that a husband cannot be held liable for unnatural sexual offences against his wife. A similar decision has been delivered by the High Court of Uttarakhand in Kirti Bhushan v State of Uttarakhand holding that the marital rape exception applies to anal sex (sodomy), therefore the husband cannot be charged under Section 377. Given the inherently intertwined relationship between the criminal and the marital offence, this reasoning can be extended to rebutting charges of marital offences.
The Way Ahead
Marriage has, at its core, the aspect of sexual relations and it is this obligatory primacy that provides immunity to the husband from prosecution for rape. This primacy then follows that sex can’t both be an essential aspect of marriage and an offence in marriage. The only basis for such a principally contradictory distinction is the difference in the type of sex. However, in the wake of the apex court’s decision in Navtej, this difference between ‘natural’ and ‘unnatural’ sexual activities stands abolished. The presumption of consent, keeping in line with the settled position of law flowing from Sir Hale’s reasoning, further overcomes the issue of consent. This analysis thus requires and argues for the abolishment of Section 13(2)(ii) of HMA. Only then would the issue of Section 377 finally be put to rest.
This blog is written by Shaurya Mahajan, Second Year Law Student at Jindal Global Law School.