Is your Spouse Cheating on you: Ways to Prove Adultery

Article 14 of the Indian Constitution provides for equality before law and equal protection of laws. The first phrase translates as a positive right conferred upon the people by the virtue of which every person will be subject to the same judicial system without any privileges or any discrimination whether positive or negative. Whereas, the second part of Article 14 implies that every person will have the right to be protected equally, and this is derived from the principle of treating equals equally and unequals unequally. Article 14 mandates not a blanket equality, but proportionate equality. Owing to this, many archaic Indian laws have since time immemorial been operating in our country under the veil and protection of the latter part of the Article.

The law on adultery is one of the above. Section 497 of the Indian Penal Code, 1860 states that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.” Even on apparent examination, we find that this law is discriminatory towards men, the men being the only ones liable to be held guilty of the criminal offence. The woman party to adultery has no criminal liability. She is only treated as a victim in the case. One may very well justify this discrimination by basing their arguments on the principle of positive discrimination that flows from Article 14 of the constitution itself, but they fail to explain why only the husband of the wife who is engaged in an adulterous relationship can file a complaint against the adulterer, whereas the wife of the husband who is an adulterer has no say in the matter. Therefore, section 497, cannot be justified as being protective of women and their dignity, as it takes away from them the legal remedy and the power to lodge a complaint when their husbands engage in extra-marital affairs with other married women. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India has also speculated on the given matter and has presented its opinion to amend or repeal the law.

However, these things aside, another problem or rather difficulty that the law brings along with itself is the way the offence has to be proven in courts. Not only is it a mammoth task in itself, different courts across the country have presented different views with respect to the evidences that can and cannot be adduced in order to successfully prove adultery. But before we get into the nitty gritty of proving adultery, we first need to understand what constitutes adultery.

WHAT CONSTITUTES ADULTERY?

The meaning attributed to the term adultery varies from different country to country. It also varies across religion, culture and context. However, the underlying meaning of adultery as enunciated in section 497 IPC refers to the act of men having sexual intercourse with the wives of other men without the consent of their husbands.

Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. This law draws a clear line of distinction between the consent given by a woman and the consent given by a man. It does not take into consideration the cases where a married man has sexual intercourse with an unmarried woman. It only seeks to prosecute the men in cases where the married women have sexual intercourse with the respective men, whether married or unmarried without taking the permission or consent of the husbands of the women. Since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. Hence the question of the constitutional validity of the section comes into the forefront.

HOW TO PROVE ADULTERY IN COURT?

The offence under section 497 is non-cognizable, bailable and compoundable, and is triable by magistrate of the first class. In order to prove the offence of adultery, circumstantial evidence plays the main role. Though proof of sexual intercourse is essential for the offence of adultery, it can rarely be proved by direct evidence. It has to be inferred from the facts and circumstances of a case.[1] However, the circumstances must be of such a nature that they fairly infer that sexual intercourse took place.[2]Evidence of opportunities sought for and obtained and of undue familiarities, which point strongly to an inference of guilt, is sufficient to establish the fact of sexual intercourse[3]. The entire background and context of the case needs to be taken into consideration for ascertaining sexual intercourse[4].

In cases where the consent or connivance or even acquiescence of the husband can be proven in the act of adultery, there lies no case against the adulterer. However, he absence or presence of consent or connivance can be inferred from the circumstances of the case. Strict proof of the same is not necessary[5].

In cases of adultery, it is very difficult to produce direct evidence. Adultery is both a matrimonial offence and a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities. The offence of adultery may be proved by:

Circumstantial evidence
By evidence as to non-access and birth of a child
By evidence of visits to brothels
By contracting venereal diseases
Confession and admission to parties
Preponderance of probability
In the case of Pattayee Ammal v. Manickam Gounder and Anr.[6] , the High Court had occasion to consider the standard of proof necessary in the case where adultery is pleaded. It was held thus:

“Adultery, from its nature, is a secret act. Direct evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even when produced, the court will tend to look upon it with disfavour, as it is highly improbable that any person can be a witness to such acts, as such acts are generally performed with utmost secrecy.”

In Fairman v. Fairman,[7] the lodger gave evidence that he committed adultery with the wife of the petitioner but the wife denied the same. As the lodger’s evidence was not corroborated it could not be held that adultery had been proved.

In the case of England v. England[8], admittedly the wife spent one night with another gentleman. It was even assumed that there was an inclination and opportunity yet the Court accepted the verbal testimony of the respondent. It was held that there was no rule of law that evidence of conjunction of inclination and opportunity must raise presumption that adultery has been committed. The sworn testimony of the wife and other gentlemen were accepted by the Court.

In Barker v. Barker[9], a Full Bench decision of the Madhya Bharat High Court where also it was observed that direct evidence regarding the act of adultery cannot be expected.

In the case of Earnest John White Vs Mrs. Kathleen Olive White and Others[10], the husband filed dissolution of marriage on the ground of her adultery. Trial Court had granted the divorce and High Court had reversed the decree of divorce. Appeal before Supreme Court and Supreme Court held that: The wife went to Patna and stayed with respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to the inclination and conduct of the wife. As adultery has been proved the court allowed this appeal.

In the case of Bharatlal Deolal Lodhi vs Top Singh Somaru Lodhi[11], the husband and wife were married for 10 years and had a child of 7 years. In 1980, he returned to his house did not find his wife there. Then he waited for sometime and made enquiry in the village but could not get any clue. He then came to know that his wife had gone to village Tikarwada along with accused Top Singh, who was working as Peon in the Panchayat Office in that village. Complainant Bharatlal thereafter went to that village and enquired from Top Singh about his wife. At this, Top Singh told him that his wife is living with him and he has kept her as his wife and there is no question of sending her with him. He thereafter returned back and went to the police station to lodge a report. Such circumstances were held to be valid proof of adultery and Top Singh was convicted.

Different courts across the country have held a variety of cases to be adultery. Some of the circumstances that constitute the commission of adultery are:

Wife had been absenting herself from her house for some times and seen in the company of a stranger to the family of her husband without reasonable explanation or any explanation.
Unrelated person found alone with wife after midnight in her bedroom in actual physical juxtaposition.
Child born beyond the period of twelve months after the cessation of marital consortium between the spouses.
Evidence on post-suit adultery is admissible to prove and explain other evidencegiven in the case and to show the character and quality of the previous acts.
Paramour’s letters indicating facts of illicit relationship.
Admission of adultery by wife through letters.
Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person in nights is sufficient to prove adultery.
A solitary instance of voluntary sexual intercourse by wife with other person is enough.
Wife left her husband and was living at her parent’s house. The allegation by husband that she became pregnant there without his access to wife. Statement by wife that husband used to visit her parents house and stayed overnights and cohabitated with her. Wife failed to examine her parents or any other witness in support of her statement. There was no interference with the decree of divorce granted against the wife.
Certain cases were not held to be adultery by the courts. Examples are as follows:

The presence of the wife in a restaurant cabin with her blouse and brassiere unhooked and the co-respondent holding her breasts in his hands is not sufficient to prove adultery.
No conclusion of adultery where the wife was found going on the scooter of some other person or talking with someone other than her husband.
No corroboration to prove adultery of wife when she remains in a room with door though shut but unbolted at 10 p.m. with another person when the mother of the husband and five grown-up children were present in the house.
Mere fact that some male relation writes letters to a married woman does no necessarily prove that there was illicit relationship between the writer and recipient of the letters.
Wife becoming pregnant after husband had undergone vasectomy operation without proving that the operation was successful, no illicit relationship of wife can be presumed.
Serious doubts may be raised as to the allegation of adultery of wife when the husband makes no such allegation in the notice for divorce prior to the filing of the suit.
Where the husband files the petition for divorce 8 years after he came to know that his wife has committed adultery and has not explained the reason for the inordinate delay alone.
Mere presence of the alleged adulterer in the bedroom of the parties does not constitute an adulterous act.
Masturbation of co-respondent by wife is not adultery.
Allegations of the husband that he saw his wife talking with other persons on three occasions in daytime without any physical contact are not sufficient.
Apart from pressing criminal charges, the other remedy available to the aggrieved party is to seek divorce under section 13(1)(i) of the Hindu Marriage Act, 1955. In a suit for divorce, it is easier to prove adultery and the element of mens rea that is intention is not necessary to establish. The husband can seek divorce from his wife on the pretext of adultery, and the necessary ingredients to prove adultery in this case is similar to the criminal trial.

[1] Kashuri v Ramaswamy (1979) Cr LJ 741 (Mad).

[2] WJ Phillips v Emperor AIR 1935 Oudh 506.

[3] Vedavalli v MC Ramaswamy AIR 1964 Mys 280.

[4] AS Puri v KC Ahuja AIR 1970 Del 214.

[5] State of Rajasthan v Bhanwaria AIR 1965 Raj 191.

[6] AIR 1967 Mad 254.

[7] (1949) 1 All ER 938.

[8](1952) 2 All ER 784.

[9] AIR 1955 MB 103 (FB).

[10] AIR 1958 SC 0441.

[11] 1995 (0) MPLJ 1050

Divorce Laws In India: All You Need To Know About.

Aditya Gaur.

  1. Introduction

Divorce as a word means legal dissolution of Marriage by a Court or any competent authority. “Any Marriage which is solemnized, whether before or after the commencement of Hindu Marriage Act, May be dissolved by a decree2 of Divorce”3. Divorce Brings end to a legal relationship but it doesn’t has any direct application on personal relationship. For Example if any couple may have cohabited for only few days of Marriage, and after this they may have lived separate and apart with hate or anything, but they will remain husband and wife in the eyes of Law, there is no such thing mentioned anywhere that they won’t be husband and wife anymore.4 Divorce doesn’t end the person relationship between the persons. Although the Marriage separation is legal in India, the process is quiet lengthy. Hindu Marriage Act Introduce many theories of Divorce under the Act like-Fault, Mutual Consent and Breakdown.

Acc. to Kautallya’s Arthshastra “Marriage might dissolved because of unhappiness and other circumstances but Manu doesn’t believe in discontinuance of Marriage. He declares “let mutual fidelity continue till death, this in brief may be understood to be the highest drama of Husband and Wife.”5 Manu Declares that a wife can’t be left by her husband by sale or abandoned or by any other means implying that once tie can’t be severed. Manu treated this as Adharma.

Evolution of Divorce

Before going further and discuss more about divorces. We should be known about how divorce was introduced and evolved in India. The History of Divorce goes back to thousand years its origin can be traced back from the Vedas. During the Vedic age Hindu Marriage was considered as indissoluble, that can’t be terminated and that is bound with many sentiments. Manus’s ultimate verdict on Women was that where the women lives happily and with respect the almighty god brings happiness and cherish the house as well and the house in which the women has to sacrifice for everything, live in sorrow or are dishonored a curse dwells in that house and no religious benefits can be taken. Manu was also very much harsh upon women he said that woman are just a child procreating machine and don’t have any rights over the property. A woman should obey her husband and do his “Seva” all her life.6

Acc. to Aristotle “Woman is to the man as a slave like a servant to the master. The male is the natural superiors and female as inferior.”7 One of the foreign explorer also reflected the same he said that “a male and female or husband and wife can’t be equal they have a mental fight between them. There can be no peace without victory and it is not possible till one of them accepts another as Master. The dissimilarity between man and woman should be increased.”

There are different laws of divorce for Different religion. Hindus are governed under Hindu Marriage Act, 1955. Muslims are governed under Personal Law, Dissolution of Marriage Act, 1939 and The Muslim Women protection of Rights and Divorce Act, 1986. Christians are governed under Indian Divorce Act, 1869 and Indian Christians Marriage Act, 1872 and Parsis are governed by The Parsi Marriage Act, 1936 and there is also a secular act called as Special Marriage Act, 1954.

Grounds of Divorce.

A Marriage can be dissolve by the decree of the court when a wife or husband files a petition under these grounds:-

I) having voluntarily intercourse with a person other than his or her spouse.

II) Has treated the petitioner with cruelty after marriage.

III) Has deserted the petitioner for a continuous period of not less than two years.

IV) Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.8

Section 13 of Hindu Marriage Act, 1955 also describes the following grounds of Divorce as under:

1. Adultery.

2. Conversion.

3. Leprosy.

4. Renounced the World.

5. Not heard alive for seven years.

6. Judicial Separation.

In the case of Apurba Mohan Ghosh v. Manashi Ghosh9, “the apex court clearly held that when the parties have given their mutual consent of getting divorce and there are no chances of their getting reunited. Their consent is also given by free consent not by any fraud or undue influence. In this case court will allow them to get divorced.”

Mutual Consent Divorce

Section 13B of Hindu Marriage Act, 1955 Provides with the Mutual Consent Divorce. Period of Separation is 1 Year.

Section 28 of Special Marriage Act, 1954 provides for divorce by Mutual consent.

Section 10A of Divorce Act, 1869, Provides for Divorce by Mutual Consent.

There are two ways of Getting Divorce in India. One is Mutual Consent Divorce and second is Contested Divorce. Mutual Consent is the easiest way of getting a divorce. Under this process both party should be equally agreed and should give free consent to get separated.

Condition Required under Mutual Consent Divorce is-

Both husband and wife have been living separately for a time more than one year.
That they were unable to live together.
And that the husband and wife are mutually agreed that the marriage is collapsed.
In addition of this both of them have to mutually decide about two important things-

1. Alimony

This is the amount that has to be paid by the husband to the wife after getting separated. There is no limit for this. Both husband and wife has to agree upon some figure and court doesn’t has to do anything with his.

2. Child Custody

If the couple is having Child or children than they have to agree upon a thing that who will be taking care of the child. Child custody can be shared, joint or exclusive, depending upon their understandings.

In the case of Garasia v. Mansu @Minachamanlal Gangi,10 it has been observed that the provision on such waiting time were in the nature of being directory and not mandatory. It was a case under marriage act for dissolution of marriage under section 13.11 During pendency of such a nature, the parties filed a miscellaneous application for converting the main petition into a joint petition for dissolution of Marriage on mutual consent under section 13b. The parties also prayed for waiving of the waiting time. They pleaded that they are living separately for a longer period of time already. The court said that there are no chances of getting reunited again so the court waived the waiting time.12

How to file a Divorce under Mutual Consent:

The husband and Wife should be living separately for One Year.

Both Parties will file a Petition under the Court.
The statement of both the parties will be recorded and Signed under a sheet of Paper before the honorable Court.
Then the court will provide the parties with a period of six months to resolve the disputes among them and to consider their relationship all over again or they want to carry on with the separation process. This is Called Reconcile Period.
At the end of the said period Court will call both the parties in case they haven’t changed their mind.
After listening both the parties Court will announce its decision.13
Contested Divorce

However. Not all the parties agree upon getting mutual consent divorce. In some cases, one party files the divorce case in the court and the other contests it. The ground for contesting can be anything. But the ground on which the case has been filed by a party in the court is given under-

(i) Adultery.

(ii) Willful desertion of the petitioner by the spouse for more than 2 years.

(iii) Physical or mental torture on the petitioner by the spouse.

(iv) Sexual impotency or unable to perform sexual intercourse.

(v) Insanity or suffering from any mental disease of the spouse.

Documents Needed to Contested Divorce.

Income Tax Statement for the last two years.
Details of the present profession of the petitioner.
Information related to the family background.
Information of all the assets if have any.
How to File a Divorce under Contested Divorce.

Grounds on which the divorce has to be filed should be clear.
All the documents and evidence should be collected. For filing a case it is very necessary to have appropriate evidence.
File the petition.
The court then summon the other party if the other party arrives than the court will hear arguments of both the side and if the other party don’t show up the court will give ex-parte judgment.
The court will then examine all the evidence and documents and will hear cross-examinatio n of parties.
Then the court will decide the case.
This is very time and money consuming process.
Landmark Judgments on Divorce.

Cruelty as a Ground for Divorce.

V.Bhagat versus. D.Bhagat (Mrs.).14

A two judge’s bench referred that “mental cruelty can broadly be defined as that conduct which inflicts upon the other party such pain and mental suffering as would not make possible for the party to live with another. The mental cruelty should be of a nature that the other party should not be reasonably live with another.”15

A. Jayachandera versus. Aneel Kaure16

“It has been ruled that the question of mental cruelty should be considered in the light of the norms of the society and their social values, status and Environment in which they live. If the conduct of a spouse creates an apprehension in the mind of others about his mental or physical welfare than it would amount to cruelty.”

Denial of Sex is Valid Ground for Divorce.

Smt. Shashi Bala vs. Shri Rajiv Arora17

The verdict came on petition by a husband seeking divorce, complaining that his wife had subjected him to mental cruelty by not allowing him to have physical relationship for four and a half years, though she was not suffering from any physical disability.

“In view of foregoing discussion, we are of the considered view that the husband has fully established that he was subjected to mental cruelty by the wife by denying sex to him for a long period despite living under the same roof, without any justification and though she was not suffering from any physical disability” a bench comprising Justice Pradeep Nandrajog and Pratibha Rani Said.18

Hindu Couple can Remarry after Divorce.

Shivram Dodanna Shetty V. Sharmilla Shetty.

The ruling came from a full bench Presided over by Justice Naresh Patil, Justice Ramesh Dhanuka and Justice Sadhana Jadhav. This judgment came as the relief to estranged Hindu couples who want to challenge the orders. Decree and verdicts of the family court.

“The court said that the Hindu couple that got divorced by the family court can remarry within 90 days after the verdict of the court.”

An Important judgment has also given by the Aurangabad bench of the Bombay High Court that the talaq even if it is oral must be proved before the court, if it contested by the wife with leading evidence.
This judgement of the high court will help the Muslim woman who are arbitrarily divorced by pronouncing of talaq three times. It was very rigid and unfair with the Muslim woman.

Conclusion.

Religions like Hindu consider their marriage as unbroken bond. Prior to the Acts made by the legislation or executive there were no such provisions for divorce. The concept of divorce or termination of relationship wasn’t even in the mind of people at that time. Woman were treated as slave all lifelong. But time has changed, situation has changed, now woman are treated with more respect. There are courts now to set free woman or man from an unpleasant marriage. There are many ground on which a divorce can be taken without any problem. Taking a divorce is always a stressful and big step that is why courts have also made it easy for the people of the country. The difference of sexes has also reduced nowadays.

Everything comes with pros and cons. And introducing the divorce in the independent India may reduce the content of marriage. It can completely stop the concept of marriage by continuous breakdown of marriages by court. Breakdown of marriage easily can also encourage the person to marriage again and again. That will surely harm the culture related with marriages in India. That is why it is very necessary for our lawmakers to deal with this matter and should make laws in a very cautious manner.

1 B.comLLB 3rd Year, UPES, Dehradun.
2 All Decree of Divorce are, in the first instance and the marriage is finally terminated when the decree made absolute.
3 Section 13, Hindu Marriage Act, 1955.
4 See the form of Solemnization of Marriage in Common Prayer.
5 Agarwal R.K, Hindu Law, Central Law Agency, Print 2014.
6 Ibid, Verses II 213-214k IV, 205-206,V,146-14 8, VIII, 416, IX, 2-3, 14-20, 45-46,104,IX,36- 37.
7 Aristotle, The Politics, ch-1, p-13, R.G. Mulgan, Aristotle’s Political Theory, Pages 20, 44-47,61,79, Clarenden Press (1977).
8 Section 13, Hindu Marriage Act, 1955.
9 AIR 1989 Cal 115: 93 CWN 79: I (1990) DMC145: (1988) 2 CHN 449.
10 1987 (2) GLR 1321: II (1988) DMC 243
11 Hindu Marriage Act, 1955.
12See at http://shodhgang a.inflibnet.ac.i n/bitstream/1060 3/39005/11/11_ch apter%203.pdf.
13 See at http://www.vakil no1.com/legal-ad vice/divorce-mut ual-consent-indi a-step-step-proc edure.html.
14 (1994) SCC 337.
15 https://indianka noon.org/doc/184 8484/.
16 (2005) 2 SCC 22.
17 Judgment delivered on 21.03.2012.
18 https://indianka noon.org/doc/133 858876.

Homosexuality-the legal arguments against it

safder kazmi

377 IPC DOESN’T  VIOLATE THE PRINCIPLE OF EQUALITY ON THE BASIS OF SEX ENSHRINED IN ARTICLE 14 AND 15 OF THE CONSTITUTION OF INDIA.

Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]

 

LEGALIZING HOMOSEXUALITY BY STRIKING DOWN § 377 IPC TO SUCH EXTENT INFRINGES RIGHT TO HEALTH AS EMBODIED IN ARTICLE 21 OF THE CONSTITUTION.

A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]



[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.

[10]Ibid

[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14