Section 377 IPC : Section 377 in Indian Penal Code | Shonee Kapoor

I was reading comments of some Men’s Rights Activists on Twitter and Facebook during the ongoing case in the Supreme Court about “decriminalizing” Section 377 IPC or Unnatural Sexual Offences. A few LGBT rights supporters filed the case, and essentially, they want to decriminalize homosexual sex between two consenting adults.

Some media reports also suggest that the 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 Section 377 has been added to the FIRs along with much-misused Section 498A of IPC (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) would be struck down. It is not 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 the Indian Penal Code, i.e. offences affecting the human body.

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 the Indian Penal Code (Rape: Proposed Section 63 of The Bharatiya Nyaya Sanhita, 2023), in which insertion of any kind in the female body can be termed as Rape.

A little background is that Section 377 of IPC is drawn from the Buggery Act, which is in contrast with established Indian practices. Though many Puritans would see it as perversity, Indian sexual literature like Kamasutra and Kokshashtra and early medieval depictions like Khujarao have long been filled with all kinds of acts of sexual gratification of humans, and such acts were not against established public morality. So, the insertions of Section 377 were primarily because they did not align with Biblical precepts on which English morality was based. India continued using the same Penal Code to such an extent that till 2012, even paedophilia was covered under Section 377 of the IPC.

The history of Section 377 can be read at Wikipedia: https://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code for better understanding, but that is not the context of this article.

It is now coming to whether there is any benefit of the same to married men facing prosecution for IPC 377 clubbed with IPC 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023)? These men will not benefit from the judgment of the Supreme Court in this regard. For one, S. 377 of IPC would remain in 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 for marriage. As a result, it would still be possible for a woman to invoke this section in matrimonial crimes. Instead, what I am seeing are the complaints by men/husbands where they have alleged S. 377 of IPC by their female partner. The moot point is that in over 1000 FIRs that I have read, which mention S. 377 of IPC, I have never read the words that the act on the part of the wife was consensual.

Section 377 is not altogether useless by any stretch of the 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. The 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 every other conceivable field. But the Indian laws are treating Indian wives in the same disposition as their grandmothers were confined to. Such imbalance is today ripping India’s Family system from its core, which is withering down marriage as an institution.

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