JUDGMENT :

MRIDULA BHATKAR, J.

1. In this petition, the petitioner is challenging the order dated 23.10.2012 thereby confirming the order dated 5.1.2012 passed by the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, rejecting the discharge of the petitioner under section 377 of the Indian Penal Code. The petitioner is a co-accused who was initially prosecuted under sections 498A, 377, 323, 504 r/w section 34 of the Indian Penal Code along with the co-accused.

2. The facts of this case in brief are as under:

One married woman filed complaint on 26.2.2019 against her husband and the present applicant/accused and her husband got married on 6.12.1994. In 2009, the couple had a son aged 6 to 7 years old. After 4 to 5 years of their marriage, she realised that her husband is a gay and she opposed the parallel relationship of her husband. However, he ill treated her and hence, she left the house and started living with her father. Thereafter, again she came back. However, though assured, she found that her husband continued to keep his gay relationship with different males. In early 2007, she found that her husband was having sexual relationship with the petitioner accused an