On 6/ September / 2018, the Supreme Court overruled its two judge-bench decision in the Suresh Koushal vs Naz Foundation case (2013) and legalised homosexuality. Justice D Y Chandrachud did not mince words in expressing his displeasure against the government for not taking a categorical stand on Section 377. He said that the law criminalises behaviour that does not conform to the heterosexual expectations of society. Justice Indu Malhotra rightly said that history owes an apology to the homosexual community. It is a different story that we have been unjust to so many sections of our society that an apology is due almost every day.
The judges criticised the imposition of Victorian morality through Section 377. Judeo-Christian morality did cast a big influence on the colonial state’s laws. Islam too considers homosexuality as a sin. Ancient Indian culture and mythology were more liberal. We know of Shikhandi in Mahabharat, Lord Vishnu’s female incarnation as Mohini or Lord Krishna turning into a woman to marry Arjuna’s son Aravan whom no woman was willing to marry because he was doomed to die in a day. Erotic paintings and sculptures in temples depict homosexual impulses of at least certain sections of ancient society. The RSS, in its response to the judgment, has rejected same-sex marriages. In a rare show of unity, the Muslim and Christian clergy are with the RSS on this issue.
Since 377 is a question of criminal law, the Muslim Personal Law Board should neither seek a review of the judgment nor demand a legislative overturning of the verdict. As per Section 2 of the Dissolution of Muslim Marriage Act,1939 a Muslim wife can still seek divorce from a husband who leads an “infamous life,” which may include homosexuality.