DANIEL CRASTO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this petition, the petitioner is challenging the order dated 23.10.2012 thereby confirming the order dated 5.1.2012 passed by the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, rejecting the discharge of the petitioner under section 377 of the Indian Penal Code. The petitioner is a co-accused who was initially prosecuted under sections 498A, 377, 323, 504 r/w section 34 of the Indian Penal Code alonwith the co-accused.

(2.) The facts of this case in brief are as under:

(3.) Heard submissions and persued the FIR and other documents. The complainant has grievance against her husband, who is a gay and kept sexual relatioins with male friends i.e., the petitioner. The Supreme court in the case of Navtej Singh Johar & Ors. vs. Union of India, W.P. (Cri.) Nbo.76 of 2016 & Others decided on 6.9.2018, has held section 377 of the Indian Penal Code insofar as it criminalises consensual sexual conduct between the adult of same sex, as unconsitutional. In the present case, both were having an extra marital consensual sexual relationship. Though it may be a ground for divorce on the ground of cruelty to the complainant, it does not constitute offence under section 377 because both are adults and had sexual relationship by consent. In this case, there is no victim. The complainant wife is an aggrieved person but she cannot be called as a victim under section 377 of the Indian Penal Code. There are alegations against the husband having unnatural sexual intercourse with her.