India | Wife’s case against gay husband dismissed by Bombay High Court

In what’s believed to be a first since same-sex relations became legal in India, the case of a woman who charged her husband and his lover with homosexuality has been dismissed.

The woman laid the complaint against her husband and the man she claimed he was having an affair with at a police station in 2009.

The couple married in 1994 but the woman said that she only learned that her spouse was gay a few years later.

At the time that the wife laid the charges against the men, homosexuality was illegal in India under section 377 of the penal code and was punishable with imprisonment for between ten years and life.

The case has been ongoing for some time, but on Wednesday, the Bombay High Court finally discharged the men. The decision follows India’s historic Supreme Court ruling in September 2018 that the colonial era ban on consensual adult homosexuality was unconstitutional.

The Times of India reports that Justice Bhatkar found that while the wife could have a legitimate complaint against her husband for having an affair, the homosexuality charges could not be upheld against the men.

“In the present case, both had an extra-marital consensual relationship,” said Justice Bhatkar. “Though it may be a ground for divorce for cruelty to the (wife), it does not constitute an offence under section 377 because both are adults and had sexual relations by consent.”

The judge added: “The complainant (the woman) is an aggrieved person, but she cannot be called a victim under section 377.”

In October last year, it was reported that more than 30% of gay men in India are married to a woman, with the vast majority of their spouses having no clue about their husband’s sexuality.

With a population of 1.3 billion people, it’s estimated that there are about 42 million LGBT+ people in India.