Relief for hetero couples

The Supreme Court has ruled that sex between a consenting and adult heterosexual couple would not be a criminal offence even if "performed differently" and against the "order of nature".

By Our Legal Correspondent
  • Published 7.09.18
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The Supreme Court. Picture by Prem Singh

New Delhi: The Supreme Court has ruled that sex between a consenting and adult heterosexual couple would not be a criminal offence even if "performed differently" and against the "order of nature".

Section 377 of the Indian Penal Code, some provisions of which the apex court struck down as unconstitutional on Thursday, made any sexual act "against the order of nature" a criminal offence irrespective of consent, age, gender and sexual orientation.

"In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as 'against the order of nature'," a five-judge constitution bench said.

"It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature."

The court said the criminalisation of consensual sex between adult heterosexual partners was legally untenable because Section 375 (relating to rape) stipulates that carnal intercourse between a man and a woman with the informed consent of the woman does not amount to rape and is not punishable.

It cited how the Criminal Law (Amendment) Act, 2013, while replacing the words "sexual intercourse" in Section 375 with four elaborate clauses widening the definition of rape, had permitted sex against the so-called order of nature between consenting heterosexual adults.

"Section 377 IPC still remains in the statute book in the same form. Such an anomaly, if allowed to persist, may result in a situation wherein a heterosexual couple who indulge in carnal intercourse with the wilful and informed consent of each other may be held liable for the offence of unnatural sex... despite the fact that such an act would not be rape within the definition as provided under Section 375 IPC," the judgment said.

"(At) the very least, it can be said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bisexuals or transgenders, hardly serves any legitimate public purpose or interest. Per contra, we are inclined to believe that if Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail."