This document discusses several topics related to sexuality and law in India. It provides an overview of: - The scattered and vague nature of Indian laws related to sexuality. - Key sections of laws like the Indian Penal Code that deal with issues like obscenity, rape, and unnatural offenses. - Differences between Indian and English laws. - Various issues related to sexuality that arise in criminal and family courts, including mental cruelty, refusal to have sexual intercourse, and impotence.

1. Sexuality and Law in India
Dr. Vipan B. Kumar
09820391168
vipanbkumar@rediffmail.com

2. In India there does not exist a separate field of
“Sexuality Laws” as one finds in Countries such as
Canada and Great Britain.

3. Sexuality and Law in India
There exists a very large gray
area with respect to very many
issues in relation to sexuality
and Law, in our country,
which needs to be urgently
addressed.

4. To give a brief overview of sexuality
related laws in India.
Raise few gray issues that needs to be
addressed.
Examine the role of CSEPI as a networking
organisation in addressing these issues.
Purpose of this Presentation

5. Indian Laws and Sexuality
•Scattered.
•Not Uniform.
•Vague / ambiguous
•Undeveloped
•Restricted
•Elastic
•Gender Bias
•Ignores the Psycho-social reality.

6. Indian Laws and Sexuality
• Indian Penal Code (1860).
• Matrimonial Laws Dealing with Sexuality
Issues.
• Special Laws:
Indecent Representation of Women
(Prohibition) Act, 1986.
• Information Technology Act, 2000.

7. Indian Penal Code (1860).
• Obscenity = 292, 292 A, 293 and 294
• Molestation = 354.
• Rape = 375, 376, 376 A, 376 B,
376 C, and 376 D.
• Unnatural Offences = 377
• Word, gesture or act intended to insult the
modesty of a woman = 509.

8. English Law = Sexual Offences Act 1956
• Section 14 = It is an offence …..for a
person to make an indecent assault on
a woman.
• Section 15 = It is an offence on a
person to make an indecent assault on
a man.

9. Section 354 of IPC
Assault or criminal force to woman with
intent to outrage her modesty.
“who ever assaults or uses criminal force
to any woman, intending to outrage or
knowing it to be likely that he will thereby
outrage her modesty shall be punished
with imprisonment of either description
for a term which may extend to two years,
or with fine, or with both.”

10. Section 509 of IPC
Word, gesture or act intended to insult the
modesty of a woman
“ Whoever, intending to insult the modesty of any
woman, utters any word, makes any sound or
gesture, or exhibits any object intending that
such word or sound shall be heard, or that such
gesture or object shall be seen, by such woman,
or intrudes upon the privacy of such woman,
shall be punished with simple imprisonment for a
term which may extend to one year, or with fine,
or with both.

11. 376 v/s 377
Rape
v/s
Unnatural Offences

12. Section 376 (1)
• Minimum punishment is 07 years.
• It may be for life or for a term which may extend
to 10 years and shall also be liable to fine unless
woman raped is his wife and is not under 12 years
of age, in which case he shall be punished with
imprisonment of either description for a term which
may extend to two years or with fine or both.
•Court may for adequate and special reasons to be
mentioned in the judgment,impose a sentence of
imprisonment for a term of less than 07 years.

13. Section 376 (2)
• Shall be punished with rigorous
imprisonment for a term which shall not be
less than 10 years but which may be for life
and shall also be liable to fine.
• Court may for adequate and special reasons
to be mentioned in the judgment,impose a
sentence of imprisonment for a term of less
than 10 years.

14. 376 A / B / C / D
• 376 A = Intercourse by a man with his wife during
separation. = May extend to 02 Years and shall also be
liable to fine.
376 B / C / D
• 376 B = Intercourse by public servant with woman in his
custody
• 376 C = Intercourse by superintendent of Jail, remand
home,etc
• 376 D = Intercourse by any member of the management or
staff of a hospital with any woman in that hospital.
Intercourse not amounting to offence of rape = May
extend to 05 Years and shall also be liable to fine.

15. Unnatural Offences (Sodomy or
Buggery)
• Man having sex with Man = willingly = Consenting
partner.
• Man having sex with man = unwillingly =
Non-consenting partner.
• Man having sex with a child.
• Man having anal / oral intercourse with a willing female
partner.
• Man having anal / oral intercourse with unwilling female
partner.
• Man having a sex with an animal.

16. Punishment for Unnatural Offences
(Sodomy or Buggery)
“Whoever voluntarily has carnal
intercourse against the order of nature
with any man, woman or animal, shall
be punished with imprisonment for
life, or with imprisonment of either
description for a term which may
extend to 10 years and shall also be
liable to fine.”

17. Consensual Sexual Intercourse
V/s
Rape

18. Marital Rape

19. Rape of a Male

20. Rape of a Male
Even under the British Law Rape
can only be committed by a man
and a woman cannot rape a man,
although she may be guilty of an
indecent assault upon him.

21. Mental Cruelty
Can we Please have 498 B ??

22. Two Extremes
354/509 – 376/377

23. Offences Related to Marriage
• Mock Marriage = 493 and 496
• Bigamy = 494
• Adultery = 497
• Mental Cruelty = 498 A

24. Criminal V/s Civil Jurisdiction
The issue of Sexuality related to Law
has generally come up before Criminal
Courts as well as Civil Courts.
The aim of the Criminal Court is to
punish an individual whereas the aim of
matrimonial court is to protect the civil
rights and provide relief to individual

25. Criminal V/s Civil Jurisdiction
Sexuality issues, especially
related to matrimonial disputes,
very often in Criminal and or
Civil Courts are almost identical
but the relief that they offer are
different.

26. Common Issues before the Matrimonial
Court related to Sexuality
• Mental Cruelty.
• Adultery.
• Impotency, including Relative Impotency.
• Non-consummation of a Marriage.

27. MENTAL CRUELTY
• Refusal to have Sexual Intercourse.
• Excessive Sexual Demands.
• Refusal to have Sexual Intercourse without
contraceptive.
• Sexual perversions.
• Unnatural Sexual Intercourse.
• Coitus Interrupts.

28. Savitri v/s Mulchand AIR 1987 52
This case relates to cruelty committed
by a child on his parent. When ever
the father would refuse to do anything.
At the behest of the mother, the son,
acting in consort with the mother
would grab the testicles of the father
and squeeze them.

29. Ashok Sharma V/s Santosh Sharma
The wife use to pull the penis
of the husband carelessly and
contemptuously on
inappropriate impulse which
resulted in excessive pain to
the husband.

30. Mental Cruelty
Unnatural Sexual Practice
and disgusting accusation
of un-chastity or adultery
is a specie of cruelty.

31. Mental Cruelty
False allegation of sodomy
by wife against the husband
is an act of mental cruelty on
the part of the wife towards
husband (AIR 1996 AP 104).

32. Mental Cruelty
Keeping a concubine in the
matrimonial home and having
sex with her and promise to
marry her, while wife is living
in the matrimonial home is an
act of mental cruelty.

33. Mental Cruelty
• What happens when one spouse uses
contraceptive without intimating to the
other spouse. Held “It is an act of mental
cruelty”
• Getting pregnancy terminated without the
consent of the husband is an act of mental
cruelty.

34. Mental Cruelty
• Sex perversions has been held to
amount to mental cruelty.
• Lesbian relationship between the wife
and another woman has been held to
amount to mental cruelty.
• Persistent inordinate sexual demands
or sexual malpractices by either
spouse amounts to mental cruelty.

35. Mental Cruelty
• Forcing one’s spouse to submit to
abnormal or unpleasant sex practice is
cruelty.
• Resorting to unnatural carnal
relationship would amount to cruelty.
• The practice of Coitus interrupts
amounts to cruelty.

36. Mental Cruelty
Kusum Lata V Kamal Prasad AIR 1965 All 280
• Excessive sexual demands may amount to
legal cruelty if they have caused injury to
health.
• Unnatural sex through anus with wife or
oral sex is also cruelty.

37. Refusal to have Sexual Intercourse
The law is well settled that if either
of the parties to marriage being of
healthy, physical capacity refuses
to have sexual intercourse, the
same would amount to cruelty
entitling the other party to a decree
of divorce.

38. Refusal to have Sexual Intercourse
It would make no difference in
law whether denial of intercourse
is the result of sexual weakness of
the Respondent disabling him
form having sexual union with the
Appellant or it is because of any
willful refusal by the Respondent.

39. Refusal to have Sexual Intercourse
• Persistent refusal to have marital intercourse
without any cause amounts to cruelty.
• When wife voluntarily deprives the husband
of her society and cohabitation for a long
period of time it amounts to mental and
moral cruelty.

40. Refusal to have Sexual Intercourse
(Srikant v/s Anuradha AIR 1980 Kant 8)
It is one of the essential and principal
obligations on the part of the husband to
satisfy the sexual urge of his wife which
is a natural instinct, married life without
sexual life will be a curse to the wife.
Thus, failure to or inability of or refusal to
effectuate the sexual intercourse by the
husband without any reason on the part of
the wife would amount to subjecting the
wife to cruelty.

41. Refusal to have Sexual Intercourse
Willful denial of sexual
relationship by a spouse when
the other spouse is anxious for it
would amount to mental
cruelty, especially when the
parties are young and newly
married.

42. Indian Case V/s English Cases on
Refusal to have Sexual Intercourse
In Indian case only one has to establish that
there is a denial or refusal to have sex
whereas in the English cases it has to be
established that as a result of such denial of
sex, health of other party has been suffered.

43. IMPOTENCE
Potency in the case of males means
the power of erection of the male
organ plus the discharge of healthy
semen containing living
spermatozoa and in cases of females
menses.
• Rama Natrajan V. Alexander Xavier Nathan (2000) 1
DMC 120 Mad.
• Shamala Devi v. Surjit Singh AIR 1998 HP 32)

44. IMPOTENCE
A person is impotent if his
or her mental or physical
condition makes sexual
intercourse and
consummation of marriage
practically impossible.

45. IMPOTENCE
• Partial and incomplete intercourse is not
consummation. If a party is not capable of
performing the sexual intercourse fully, he
or she would in law be deemed to be
impotent.
• A transient penetration would not amount to
consummation.

46. IMPOTENCE
Capacity for sexual intercourse
does not depend on capacity to
conceive and incapacity to
conceive is not impotency and
not a ground of annulment of
marriage.

47. IMPOTENCE
Pregnancy of wife does
not necessarily mean
that the husband is not
impotent.

48. RELATIVE IMPOTENCE
Judiciary has taken cognizance of the
concept of Relative impotence and
have accepted the fact that there are
instances where two perfectly normal
human beings are found to be virtually
impotent vis-a vis each other, whereas
they might be perfectly potent vis-à-
vis the other person.

49. RELATIVE IMPOTENCE
AIR 1985 Bom 103 and AIR 1954 Mad 316
A person may generally be capable of
having intercourse and yet incapable of
performing it with a particular individual
owing to certain causes, e.g., hysteria.
This state of affairs entitles the other
party to a decree of nullity. Thus, where
the husband is impotent as regards his
wife only, even then decree of nullity
can be pronounced.

50. RELATIVE IMPOTENCE
AIR 1985 Bom 103 and AIR 1954 Mad 316
“The wife submitted to sexual
intercourse only on the wedding
night when the husband used force
and on all other occasions resisted
his attempts. In such a case wife
could be said to be impotent qua
the husband.”

51. IMPOTENCE
• A person charged for impotency cannot be
compelled to undergo medical
examination.(AIR 1972 Mys 157).
• Andhra Pradesh high Court has given a
dissenting judgment (AIR 1985 AP 1).
“ The Court could appoint commissioner
doctor to examine potency of the parties. There
is no deprivation of personal liberty under Art.
21 of the constitution in asking for such an
examination.”

52. IMPOTENCE
“Where the husband was wholly unable to
perform the act of sexual intercourse with his
wife for which he had full opportunity, having
lived in the same room for 2 or 3 days and night
immediately after the marriage, it was fair
inference that the non-consummation of marriage
was due to the husband’s knowing refusal
arising from incapacity, nervousness or hysteria
and that he demonstrated his impotency qua his
wife and even after a fair trial had been given by
the wife if the husband failed in his primary
marital duty he should be regarded as impotent
(AIR 1963 Punj 114)”

53. IMPOTENCE
The Respondent (Husband) had an
ample time when the Appellant was
alone with him in the same room to
consummate the marriage. It was not
consummated during 34 days. It was
held that the failure of the husband to
consummate the marriage was because
he was impotent.(AIR 1968 Ker 129)

54. IMPOTENCE
Where both the parties to
marriage lived together for 17
days and wife refused to have
sex with the husband,
impotency was presumed
(1996 DMC II Ker 257).

55. IMPOTENCE
Wife’s consistent refusal to
consummate the marriage and also
her refusal to submit herself to
medical examination are strong
circumstances from which a
legitimate inference of her
impotency can be drawn.(AIR 1970 Mad).

56. Doctrine of fecundation ab extra
Birth of child is not conclusive
evidence that marriage has been
consummated as it is well established
that fecundation ab extra can take
place. This doctrine was applied in the
Indian case of Manjual v/s Suresh
Deshmukh AIR 1979 Del 93.

57. Manjual v/s Suresh Deshmukh AIR 1979 Del 93
In this case the wife filed a petition for nullity
of marriage on grounds of impotency of her
husband,after the birth of the child. The wife’s
plea was that pregnancy and birth of the child
was caused due to fecundation ab extra on
account of rubbing her husband’s organ
smeared with semen after masturbation,
holding his penis in his hands against her
vagina. The husband failed in his attempt to
consummate the marriage owing to loss of
erection.

58. Manjual v/s Suresh Deshmukh AIR 1979 Del 93
The question for decision in this case
was that despite the birth of the child
could it be said that marriage had not
been consummated. It was held that
the birth of a child was due to an
accidental freak of fecundation ab
extra during the abortive attempt to
consummate the marriage.

59. Judiciary and Sex Education
• Sex Education for Judicial Personnel.
• Marriage Counsellors ????
• Critical Appraisal of the Judgments
involving Sexuality related issues.
• CSEPI – Networking – Educational and
Research Issues.

60. Suggestions
• A Separate act to deal with Sexuality
offences and related issues.
• Law Commission.
• Elected Representatives to raise issues.
• Pressure groups / NGos
• Role of CSEPI

61. Role of CSEPI
• Critical Self-introspection.
• Write to the Law Commission.
• Hold periodic program for Members of the
Parliament detailing the need and urgency (Two in
a year).
• Refresher courses for Judiciary on Psychosocial
and medical aspects of sexuality(For in a year).
• Network with other related organisations in a
consistent and perseverant manner.
• Using the Print and Electronic media to Lobby.