19 January,2009 06:05 AM IST | | Charul Shah
Court grants divorce on grounds of impotence
Vina Joshi's (24) dreams came crashing down when she discovered that her NRI husband Praveen Mehta (26) was homosexual. Joshi had filed a petition for nullification of the marriage on the grounds of fraud and impotency in 2007, and a year later, was granted divorce.
Joshi, the only child of her parents, was married to Mehta, a chartered accountant settled abroad, through an arranged alliance in 2006. All was well for a few months before Joshi discovered her husband's sexual orientation when she stumbled upon a series of emails and chat records saved in his e-mail account. Joshi took print-outs of all the conversations and returned to her parents in India, before filing for divorce on the grounds of fraud and impotency.
In the meantime, she also discovered that Mehta's parents were aware of his sexual orientation. "In India there are no provisions in the law to get a divorce or have the marriage annulled on the grounds of homosexuality. Keeping this in mind, we had to petition for annulment of the marriage on grounds of fraud and impotency in 2007," said Shilpi Shyamani, Joshi's advocate.
When the case came up for hearing, Mehta admitted to the contents of the mails, but termed it as a prank played on a friend. However, during the trial he admitted in an affidavit that the couple had no physical relations, and that he was not physically attracted to Joshi. The court also observed during the trial that the couple did not appear to be attracted to each other.
Names of the couple have been changed to protect their identities.
Grounds for annulment
The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence, including the following:
1) Either spouse was already married to someone else
2) Either spouse was too young to be married
3) Either spouse was under the influence of drugs or alcohol at the time of the marriage
4) Either spouse was mentally incompetent at the time of marriage
5) If the consent to the marriage was based on fraud or force
6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage
7) The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties.
8) Prisoners sentenced to a term of life imprisonment may not marry
9) Concealment (eg one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)
Indian laws on homosexuality
Homosexual relations are legally still a crime in India under an old British era statute dating from 1860 called Section 377 of the Indian Penal Code which criminalises 'carnal intercourse against the order of nature'. The vague nature of the legislation has resulted in it being used against a wide range sexual behaviour like oral sex (heterosexual and homosexual), sodomy, bestiality, etc. The punishment ranges from ten years to lifelong imprisonment.
The relevant section reads:
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 ten years, and shall also be liable to fine.
None of the major Indian political parties have endorsed gay rights concerns into their official party manifesto or platform. However, one of the Politburo members of the Communist Party of India (Marxist), Brinda Karat, did write an open letter in 2003 to the then Minister of Law and Justice, Arun Jaitley, demanding a repeal of section 377, IPC.
Enforcement of the law and alleged human rights violations
Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India. However, Human Rights Watch argue that the law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, men who have sex with men, and other groups at risk of the disease. The group documents arrests in Lucknow of 4 men in 2006 and another 4 in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals
