Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.- Part IV

The Destruction of Sodom and Gomorrah, John Martin, 1852.

In the last three articles (PartI, Part II and Part III), we saw various arguments and counter-arguments raised in the case of Suresh Kumar Koushal & Anr. v. Naz Foundation & Others. The present article is the fourth part of this series. Here, I will mention excerpts from three interesting cases which were cited by the court in the present case. They would help us understand the manner in which section 377 has been perceived by the courts over a period of time.

Khanu v. Emperor[1]

The court in this case said that:

“Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os[2] is impossible”.

Citing the above mentioned case, the court in the present case said that 'here also there is the temporary visitation of one organism by a member of other organisation, for certain' clearly defined and limited objects. The primary object of the visiting organization is 'to obtain euphoria by means of a detent[3] of the nerves consequent on the sexual crisis'.

The court concluded that there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah[4] is no less carnal intercourse than the sin of sodomy.

Lohana Vasantlal Devchand v. The State

 The question that arose for consideration was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offence under Section 377 IPC.

The court said that the act was the actual replacement of desire of coitus and would amount to an offence punishable under Section 377. There was an entry of male penis in the orifice of the mouth of the victim. There was the enveloping of a visiting member by the visited organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said that the act in question amounted to an offence punishable under Section 377.

What was sought to be conveyed by the explanation in the abovementioned case was that even mere penetration would be sufficient to constitute carnal intercourse, necessary to the offence referred to in Section 377. Seminal discharge, i.e., the full act of intercourse was not the essential ingredient to constitute an offence in question.

State of Kerala v. Kundumkara Govindan and Anr.[5]

“Even if I am to hold that there was no penetration into the vagina and the sexual acts were committed only between the thighs, I do not think that the respondents can escape conviction under Section 377 of the Penal Code. The counsel of the respondents contends (in this argument the Public Prosecutor also supports him) that sexual act between the thighs is not intercourse. The argument is that for intercourse there must be encirclement of the male organ by the organ visited; and that in the case of sexual act between the thighs, there is no possibility of penetration.”

The word 'intercourse' means 'sexual connection' (Concise Oxford Dictionary). In Khanu v. Emperor the meaning of the word 'intercourse' has been considered: Intercourse may be defined as mutual frequent action by members of independent organization.

Then commercial intercourse, social intercourse, etc. have been considered; and then appears: By a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organization, for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.

Therefore, to decide whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by the visited organism. In intercourse between the thighs, the visiting male organ is enveloped at least partially by the organism visited, the thighs: the thighs are kept together and tight.

Then about penetration. The word 'penetrate' means in the concise Oxford Dictionary 'find access into or through, pass through.' When the male organ is inserted between the thighs kept together and tight, is there no penetration? The word 'insert' means place, fit, thrust.' Therefore, if the male organ is 'inserted' or 'thrust' between the thighs, there is 'penetration' to constitute unnatural offence.

Unnatural offence is defined in Section 377 of the Penal Code; whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence. The act of committing intercourse between the thighs is carnal intercourse against the order of nature.”

Hence, the court held that committing intercourse by inserting the male organ between the thighs of another is an unnatural offence. In this connection, it may be noted that the act in Section 376 is "sexual intercourse" and the act in Section 377 is carnal intercourse against the order of nature.

The next and final article of this series will contain a summary of the previous four articles as well as my opinion relating to this case.

To be continued….

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[1] AIR 1925 Sind 286.

[2] Mouth contact with the male genitals, fellatio.

[3] A catch in a machine which prevents motion until released. E.g. "a system of detents is used to ensure that gears are held in whatever position is selected"

[4] An ancient city mentioned in the Old Testament near the Dead Sea that (along with Sodom) was destroyed by God for the vice and depravity of its inhabitants. In some countries, sodomy means bestiality only and does not include homosexuality. Here, while referring to Gomorrah, the court was trying to say that the sin of Homosexuality (Gomorrah) is no less than the sin of other types of unnatural sex (Sodomy).

[5] 1969 Cri LJ 818.