Husband's Arrest in India Tests Colonial-Era Sex Law

Bangalore: When a young wife in Bangalore approached the police to file criminal charges against her husband this month, she explained how her suspicions had mounted during the months after their arranged marriage.

Beginning on their wedding day, they had had no sexual contact, the complaint read, because "my husband would not evince any interest in this issue." When she raised the issue with his parents, she told the police, "they blamed me, saying I was not adjusting to living with him."

Left to cope with the matter alone, she took increasingly serious measures, installing hidden cameras inside the apartment they shared.

Her husband - a 32-year-old executive at an Internet technology company - was arrested on Sunday, charged with violating Section 377 of the Indian Penal Code, a British colonial-era law that criminalises "carnal intercourse against the order of nature with a man, woman or animal." Although prosecutions under the law have been rare, a conviction could result in a fine, 10 years' imprisonment, or a life sentence.

The arrest of the "Bangalore techie," as newspapers are calling him, is among the first cases to appear in court since last December, when India's Supreme Court reinstated the 1861 law. The decision seemed to reverse a period of gradual liberalization in Indian society, including a decision by Delhi's high court that the law violated constitutional guarantees of equality, privacy and freedom of speech.

Rights activists said the case could represent a dangerous precedent, because the sexual acts involved had been consensual and because the woman had invaded her husband's privacy.

"What should have been seen simply as a matter of the man cheating on his wife, which would have essentially been a matter of civil dispute, has now become a criminal matter where the state is intruding a person's privacy," says Danish Sheikh, a Bangalore lawyer who met the defendant on Thursday, when he was released on bail after four days in judicial custody.

This is the second case to be prosecuted in Bangalore since the Supreme Court judgment, following that of a doctor who was blackmailed by five men with whom he had had sex. The men were booked on charges of extortion, blackmail and Section 377 violations, while the doctor was also charged under 377. The case is currently on trial.

The "techie" case could prove more useful as a challenge to the Supreme Court ruling that restored the criminal penalty for gay sex, Sheikh said, since it does not involve abuse of power or extortion, which the court has dismissed as grounds for scuttling the law.

"Here is a fine example of a case where there is neither extortion nor blackmail, and yet the state finds itself breaching someone's fundamental right to privacy," Sheikh said. "This gives the defendant fine grounds to challenge the ruling."

The account of the woman - both her name and her husband's have been withheld by officials - has drawn widespread attention, in part because she describes the pain and isolation of finding herself in an arranged marriage that failed from its earliest days.

"My husband used pink lip gloss, like daily," she told a radio interviewer. "And mannerisms were so feminine!"

At one point, suspecting that the problem was impotence, she suggested that her husband get medical tests done, but he refused; his parents were hostile when she raised the issue.

"I was suffering, thinking that my life was ruined," reads a section of the criminal report. "I got to know unknown men were coming when I was not there."

After capturing him in a sexual encounter on videotape, she brought the evidence to a local police station, telling the police, "My husband is a homosexual performing acts against nature. Take legal action against my homosexual husband," according to police documents.

Shaleen Rakesh, an activist who filed a challenge to the law in 2001, said that many gay men find themselves trapped in arranged marriages and that he hoped the public would have some sympathy with the defendant.

"Had he been comfortable enough to talk about his sexuality, he probably would not have been forced into a marriage like this," he said, noting that his own partner had been pressured into an arranged marriage, which lasted five years.

"It wasn't so much that he was forced, it's just that it was easier to face marriage than to face all the social pressure to get married," he said.

A few reporters waited outside the courthouse Thursday, but the defendant left in a car, speaking to no one. Hemant Nimbalkar, joint commissioner for crime in Bangalore, said it was a case like any other.

"A law is a law," he said. "Whether we like it or not, 377 is a reality. We have just followed procedure."