g_b HT - Sec 377 ruling fails to get gay man reprieve in court

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Sec 377 ruling fails to get gay man reprieve in court
Source:
http://www.hindustantimes.com/India-news/Mumbai/Sec-377-ruling-fails-to-\
get-gay-man-reprieve-in-court/Article1-793380.aspx
<http://www.hindustantimes.com/India-news/Mumbai/Sec-377-ruling-fails-to\
-get-gay-man-reprieve-in-court/Article1-793380.aspx>

Date: January 9, 2012

More than two years after the Delhi high court decriminalised consensual
gay sex, a Girgaum magistrate's court has rejected a discharge
application filed by a man booked for having 'unnatural sex' with
another man.
In 2009, the Delhi high court had read down Section 377 of the Indian
Penal Code (IPC) that defines "unnatural sex" ruling that consensual gay
sex between adults was not an offence. An appeal against the order is
pending in the Supreme Court, which has not stayed the Delhi high court
order.


In Mumbai, the discharge application was filed by Rommel Fernandes (name
changed), a merchant navy officer. Fernandes was allegedly the gay
partner of Anand Gupta (name changed), a Peddar Road businessman.
Gupta's wife of 17 years had filed a police case against her husband and
Fernandes for having "unnatural sex" in February 2009. Gupta and his
wife have a nine-year-old son.

The police booked Fernandes and Gupta under Section 377 of the IPC,
Section 498A (domestic violence) and criminal intimidation. The maximum
punishment under Section 377 is life imprisonment.

Fernandes cited the Delhi high court order to seek discharge in the
case. The court, however, did not accept the argument.

"Section 377 of IPC is still alive in statute. There are sufficient
allegations against both accused. In the premises (sic), prima facie
case is against accused," additional chief metropolitan magistrate UK
Aher stated in his order dated January 5.

"The Delhi high court judgment has held that gay sex amounts to an
offence only if it involves a minor victim. The Supreme Court has not
granted a stay on the order. I will challenge the magistrate court's
order in the higher courts," said advocate Vivek Kantawala, who appeared
for Fernandes.

Lawyers said the 2009 judgment had persuasive value in city courts as
well. "The 2009 Delhi high court judgment has a bearing on the Bombay
high court, and therefore all the courts in Maharashtra," said advocate
Anand Grover, who argued for petitioners, Naaz Foundation, before the
Delhi high court.

Other lawyers said territorial jurisdiction of the judgment was a grey
area. "There is a judgment of the Supreme Court, which states that if
one high court strikes down a law, it is struck down throughout the
country. Also, article 266(2) states that all high courts have
territorial jurisdiction throughout the country. This order is worth
challenging in the higher court," said Mihir Desai, a human rights
lawyer.

The magistrate, however, discharged Fernandes under section 498A, which
deals with domestic violence.