An Unnatural Offence is any criminal conduct or behavior that goes beyond the definition of a natural offence. Under Section 377 of the Indian Penal Code, which addresses unnatural offences, an individual who voluntarily engages in carnal relations against the natural order with a woman, man, or animal faces life imprisonment or a term of imprisonment of up to ten years, along with a fine.
This section’s interpretation states that penetration alone qualifies as sexual contact. The English law[1] offenses of sodomy and bestiality are discussed in this section. As this clause’s wording suggests, permission is irrelevant when it comes to unnatural offenses, and the person giving consent would be held responsible as an enabler. Since it is impossible to establish what defies nature’s order, this section is purposefully vague.
Section 377 of the Indian Penal Code originates from the Buggery Act of 1533. Since it was passed, Parliament has never changed this law—until lately. This law was based on Judeo-Christian moral and ethical precepts, which hold that homosexuality is abnormal and goes against the natural order of things because sex is only necessary for reproduction.
The functional basis is used to define what is natural, meaning that each organ in the body has a certain role to play and that it is not natural to use an organ for a purpose other than that role.Any sex other than penile-vaginal sex will therefore be considered unnatural [2]. Based on the same idea, anything else than procreative intercourse is considered abnormal.
The court concluded in Khanu v. Emperor that the primary goal of carnal relations is to allow for the possibility of human conception, which is not achievable during sexual relations including the insertion of the penis into the mouth.
Section 377 is defined as follows in the Indian Penal Code:
Any individual who engages in voluntary, against the natural order, sexual relations with a man, woman, or animal faces life imprisonment or a period of imprisonment of up to ten years, together with a fine. Justification.To constitute the carnal intercourse required for the offence specified in this section, penetration is sufficient.
Statutory Applicability of Section 377
The Delhi High Court heard a challenge to the constitutionality of section 377 in the matter of Naz Foundation v. Government of Delhi & Ors[4]. In this case, it was claimed that section 377—which included consenting private sexual relations between two adults—violated the fundamental rights guaranteed by Articles 14, 15, 19, and 21 of the Constitution. It was additionally contended that Article 21 may only be curtailed in the absence of a strong state interest, which does not exist in this instance.
The petitioner additionally asserted that the legislative goal behind section 377 is unsupported by logic or history and is based on antiquated preconceptions. The two wings of the Union of India had submitted vehemently conflicting affidavits in this particular case.
The Ministry of Home Affairs made an effort to justify the act’s ongoing existence by pointing to social disgust, public health, and public condemnation. The Ministry of Health and Family Welfare, on the other hand, supported the petitioners’ position, asserting that section 377’s inclusion in the law book hampered attempts to prevent HIV/AIDS and that removing it would improve care for gay people living with the disease.
The Delhi High Court dismissed the Ministry of Home Affairs’ claim that public disapproval or popular morality could not be a legitimate justification for restricting the right under Articles 14 and 21. The court held that public morality is ineligible to pass the standard of compelling state interest; only constitutional morality can. Section 377 of the IPC, which criminalizes homosexuals based only on their sexual orientation, is against the morality of the constitution.
The petitioners’ claims were all accepted by the court, which determined that section 377 extra vires applied, making it unlawful for adults to participate in consensual sexual acts in secret. The court further decided that teenagers who participate in non-consensual penile and vaginal sex will still be subject to the restrictions of section 377.
Religious organizations and individuals, such as the All India Muslim Personal Law Board, the Apostolic Churches Alliance, and the Utkal Christian Council, challenged the Delhi High Court’s decision to the Supreme Court in the case of Suresh Kumar Koushal and others v. Naz Foundation & others[6]. They argued that section 377 was enacted by the legislature to uphold morality and societal values. As a result, the Supreme Court reversed the High Court’s ruling and accepted this argument.
Additionally, the supreme court held in Navtez Singh Johar v. UOI[7] that consenting to adult homosexual sex is not illegal and that the existing interpretation of Section 377 is in conflict with Articles 14 and 21 of the Indian Constitution.
Relevance of the part in the modern era
Apart from homosexual intercourse, Section 377 IPC still covers non-consensual sexual activities, sex with minors, and bestiality. Unnatural sexual assault against a female is now considered rape, and sexual assault against any juvenile, male or female, is covered by the POCSO Act.
A prevalent misperception is that Section 377 is no longer in effect. Since Section 377 has been weakened, it is no longer unlawful for consenting adults to engage in any form of sexual behavior. Men and women alike must acknowledge that it is still illegal to engage in non-consensual sexual behavior with adults and that it is still unlawful to engage in any kind of sexual activity with kids or animals without their consent.
Most often, when a husband and wife engage in unnatural sex, the wife becomes the victim of a horrible crime without her consent. In most cases, the wife suffers in silence because reporting the crime is still frowned upon in the community.
A wife may prosecute her husband for unnatural sexual offenses under section 377 of the IPC. Sexual acts outside of the natural order are punishable under section 377, even if they are carried out by heterosexual couples, since the law penalizes such behavior regardless of a person’s gender identity or sexual orientation. Moreover, this section allows the offender to be punished even if the victim—regardless of age—agreed to the act. Section 377 applies regardless of the victim’s consent, and the victim’s consent cannot be used to excuse a criminal act.
In the State of Haryana v. Raj Kumar case, the Punjab and Haryana High Court declared that although it is simple to make such accusations, it is more harder to prove them. As a result, courts must always proceed cautiously when handling such complaints. The division bench of justices MMS Bedi and Hari Pal Verma declared that the marriage can be dissolved by a divorce order because, based on the evidence submitted, the accusations are supported by additional circumstances demonstrating that one of the spouses has engaged in abnormal behavior.
In summary
This law is advantageous but also open to misuse. Although marital rape is not illegal in India, Indian women will be able to hold their husbands accountable if they engage in inappropriate sexual behavior with them by using this section. Indian wives who suffer at the hands of their violent husbands will find this section to be a useful tool. In contrast, Section 377 is highly susceptible to misuse as it does not rely on permission as a determining factor for its application.
Consequently, the complainant’s consent for the unnatural sexual act would not be sufficient to prevent the offender from going to jail. People must start speaking out against injustices they experience as a result of evolving legal frameworks and social movements, and they must also be aware of their legal rights and resources.