Today’s Mumbai newspapers carry a report on an interesting case about a harassed housewife who has dragged her gay husband and his lover to the court and how the duo have sought anticipatory bail. What is really interesting is that the case among other acts, article 377 had been applied in this case.
I am not sure whether article 377 has been applied elsewhere in such cases across India. But this is indeed a unique case.
I have so many questions regarding this case
1) Article 377 can be applied when there is proof of insertion and intercourse... correct me if am wrong... is there is any such proof in this case?
2) Can article 377 be used to seek alimony/divorce?
3) Can an aggrieved wife seek arrest of the spouse's lover when the lover is a gay?
4) How does this play out in case of lesbians?
Ethical questions also remain.
A) Though this has been debated ad nauseam, I wonder whether the husband and his lover have any ethics?
b) Is the lover as culpable in this case? I mean he is in merchant navy and visits Mumbai and meets his lover when in town…
c) There is an on going discussion in gay_bombay@yahoogroups.com where one riled bi-sexual guy says that if sleeping around despite being in a marriage is wrong... then so be it.... is this attitude the lowest common denominator excuse that one can apply and shrug of one's shoulder and move on?
d) Are those who remain unmarried and don’t give into the much spoken about pressure from family and society idiots? Or they are the ones who should be applauded for sticking it out and braving the world?
What do you guys think?
Ketan
Moderator
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Gay businessman taken to court by wife
Times Of India
6 Mar 2009, 0305 hrs IST, Kartikeya, TNN
MUMBAI: A sessions court at Fort has been busy hearing an unusual matter—a wealthy businessman and a sailor with the merchant navy have had to plead protection from arrest after the wife of the former alleged that the duo was in a homosexual relationship. The Gamdevi police even registered a case under Section 377 of the IPC—the law that criminalises homosexual relations—against the two.
Ratan Shrivastav, 39, a resident of Peddar Road, and his wife Pooja, 37, got married in 1994 and have an eight-year-old son. Pooja, however, alleges that Ratan "kept having relationships with several men" which was "hampering her married life". She also said that she had often sent Ratan to a counsellor but that did not improve their marital relations. The complaint also says that there are CDs in which Ratan can be seen in a compromising position with other men.
In his anticipatory bail plea, Ratan did not deny that he was gay. He said he first went to the cops in January when he was told that a non-cognisable complaint had been registered against him for slapping Pooja.
Mum unaware of son’s homosexual relations
Peddar Road businessman Ratan Shrivastav and his sailor friend moved the court for anticipatory bail after Ratan’s wife lodged a non-cognisable complaint against them at Gamdevi police station. Thereafter, a police constable even came to his residence on February 9 and asked his mother whether Ratan was a homosexual.
His mother replied that it was his personal matter and she had no knowledge of it.
Ratan moved court on February 27 when he realised that on a specific complaint by Pooja the police had registered a case under Section 377 against him and his alleged partner, Damien Christopher, 28, the sailor. Ratan feared that he was going to be arrested for custodial interrogation since homosexuality remains a cognizable offence under Indian law. He thus rushed to court for protection and the same day was granted interim anticipatory bail till March 7.
On Thursday, the court heard the anticipatory bail plea of Christopher. Judge D U Mulla wondered whether there was any need for custody in such matters. He observed that there was no evidence that Pooja had been harassed or whether police needed to collect any material evidence. The court granted anticipatory bail to Christopher. Ratan’s own plea will come up for hearing again on Saturday.
(Names have been changed to protect the identities of the parties involved)
Indian Express
After FIR by wife, ‘gay’ husband gets anticipatory bail
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Express News Service
Posted: Mar 06, 2009 at 0257 hrs A Woman accused her husband and another man of indulging in “unnatural sex”, after which the husband moved court and was granted anticipatory bail. The woman had filed a complaint with the Gamdevi police; a sessions court on Thursday granted the anticipatory bail.
Sessions judge DU Mulla granted the bail to Joseph Mascarenhas (name changed) who works with Merchant Navy. Mascarenhas said he used to contact the complainant’s husband through the Internet.
The husband has applied for anticipatory bail. He has admitted in his plea that he is gay and has had more than a partner since 1994. Husband’s lawyer Vivek Kantawala said, “We have moved the court and it will hear the plea on Saturday. Since it’s a sensitive matter dealing with a couple’s marriage, I will not divulge any information.”
Mascarenhas said in his plea that the duo used to meet whenever he came to the city. The complainant and her husband, who stay in a plush flat on Pedder Road in South Mumbai, were married in 1994 and have a seven-year-old child. The complainant’s husband said in his plea that his wife had initially taken him to counsellors hoping that his bisexual nature was temporary. In January, she registered a non-cognizable offence against him. The police called him to the police station and let him go after discussion.
The wife made complaints to the police about being manhandled by her husband. The latter, anticipating arrest, had moved the court and got interim relief. On repeated complaints from the wife, the police filed a first information report against the alleged gay couple on February 16, under Sections 377 (unnatural sex), 504 (intentional insult with intent to provoke breach of peace) and 324 (voluntarily causing hurt by dangerous weapons or means) of the IPC. The complainant had provided two CDs of the accused indulging in unnatural sex, which the police claim as evidence.
While hearing the plea of Mascarenhas, the prosecution said he might flee. But the court said there was no requirement of custodial interrogation as there was no seizure to be made and there was no evidence that he had harassed his wife.
DNA
Wife wants hubby punished for 'gay abandon'
Menaka Rao
Friday, March 6, 2009 3:10 IST
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Mumbai: The wife of a Peddar Road businessman has filed a complaint against him and his alleged partner accusing them of having unnatural sex -- homosexuality in other words.
In her complaint filed under Section 377 of the Indian Penal Code, Rohini, 37, said that she wants to "punish them". Section 377 stipulates life imprisonment for those who voluntarily have "carnal intercourse against the order of nature".
After the complaint was filed, the businessman, Anand Mathur, and his alleged lover, Rommel Fernandes, approached the sessions court for anticipatory bail. Their applications do not deny allegations of homosexuality. Fernandes, who works in the merchant navy, was granted anticipatory bail; Mathur's application is pending.
Mathur, 40, married Rohini in 1994. The two stayed in a Peddar Road flat with Mathur's parents. In her complaint, Rohini said that she became aware of her husband's "homosexuality" in 1998.
Mathur, Rohini said, confessed to her that he had acquired the "strange habit" when he was a teen. He, however, vowed not to get involved with any man in future, she said. On her insistence, Mathur even underwent counselling, she said. The couple then had a son in 2001.
But, she had an inkling that her husband still had sexual relations with men. The two frequently had arguments about his sexual preference and many a time she left home to live with her parents, Rohini said.
The complaint claimed that in 2007, Mathur confessed to the counsellor that he had found a partner, Fernandes, through an internet site and that he was having sexual relations with him. Fernandes' job in merchant navy occasionally brought him to Mumbai since 2006, it said.
Rohini filed the first information report at the Gamdevi police station on February 16. The police said that during investigations, they found two CDs with "incriminating material" against the accused.
Rohini's lawyer Ameta Kuttikrishnan on Thursday opposed Fernandes' application saying his relationship with Mathur had "hampered" her client's married life. "I'm apprehending that they (Mathur and Fernandes) will get back together. Some strict punishment is required," she said.
Additional sessions judge DU Mulla asked if Rohini still resided with her husband. When he was told she did, the judge asked: "Why are you still residing with him. How can you justify your demand (for the police custody of the accused)? Your problem is not going to be solved like this."
Judge Mulla, while granting anticipatory bail to Fernandes, observed that no other evidence needs to be collected in the case and there are no allegations of Rohini being harassed.
Mathur's anticipatory bail plea will come up for hearing on Saturday. His lawyer, Vivek Kantawala, refused to comment on the case.
(Names changed to protect identities)
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