377 IPC – Would Supreme Court Judgment help Men Facing Matrimonial Disputes
I was reading comments of some Men’s Rights Activists on Twitter and Facebook during ongoing case in Supreme Court about “decriminalizing” Section 377 or Unnatural Sexual Offences. The case essentially is filed by few LGBT rights supporters and essentially they want to decriminalize homosexual sex between two consenting adults.
Some media reports also suggest that Supreme Court can decriminalize Section 377 of IPC. Buoyed by these reports some MRAs are happy that now that Section 377 would be decriminalized that means the section 377 added to the FIRs along with much misused Section 498A of IPC would be struck down. It is no so. Apex Court would decide only the aspect of Section 377 in the light of consenting adults and is not going to decriminalize 377 as a whole.
Let us first examine what is Section 377 of IPC. It forms part of Chapter XVI of Indian Penal Code i.e. offences affecting human body.
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.
Logically speaking, from the explanation it can be seen that the ambit of Section 377 extends to any sexual action involving penile insertion. Theoretically, sexual acts such as fellatio and anal penile penetration may be punishable under this law. This is in contravention to Section 375 of Indian Penal Code in which insertion of any kind in female body can be termed as Rape.
A little background is that Section 377 of IPC is drawn from Buggery act, which is in contrast with established Indian practises. Though many puritans would see it as perversity, Indian sexual literature like Kamasutra, Kokshashtra and early medieval depictions like Khujarao for long have been filled with all kind of acts of sexual gratification of humans and such acts were not against established public morality. So, the insertions of Section 377 was mostly because it was not in consonance with Biblical precepts on which English morality was based on. India continued using the same Penal Code to such an extent that till 2012 even paedophilia was covered under Section 377 of IPC.
The history of Section 377 can be read here at Wikipedia https://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code for better understanding because that is not the context of this article.
Now coming to whether there is any benefit of the same to married men facing prosecution for IPC 377 clubbed with IPC 498A? Actually these men are not going to be benefitted from the judgment of Supreme Court in this regard. For one, S. 377 of IPC would remain the statute books and the only exception would be that it would no longer be a crime when the same happens ‘between consenting adults’
And unlike the offence of Rape, Section 377 or Unnatural Sexual Offences does not make any exception of marriage. As a result, it would still be possible for a woman to invoke this section in matrimonial crimes. Rather what I am seeing are the complaints by men/husbands were they have alleged S. 377 of IPC by their female partner. The moot point being in over 1000 FIRs that I have read which has mention of S. 377 of IPC, I have never read the words that the act on the part of wife was consensual.
Section 377 is not altogether useless by any stretch of imagination. As rape laws in India are not gender neutral and only a woman can invoke the same. If the section is struck down in its entirety it would leave men who have been sodomised with no redressal. The need of the hour is to have sexual offence laws be gender neutral. Frequent tinkering of law has already made a mockery of it. Need of the hour is purging gender discriminatory provisions in various matrimonial related laws in view of the emancipation of Indian Women in social, economic, political and in every other conceivable field. But the Indian laws are treating Indian wives in the same disposition as their grand-mothers were confined to. Such imbalance is today ripping the India’s Family system from its core, which is withering down marriage as an institution.
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