Rape Should Be Gender-Neutral Offence – Kerala HC
A woman cannot be prosecuted if she entices a man with a false promise of marriage. However, a man may be prosecuted for the same crime. It ought to be gender-neutral, remarked Justice A Muhamed Mustaque orally.
When the issue of an old rape charge against the accused arose, his attorney argued that he is out on bail and that the case was built on unfounded allegations of sex under false promise to marry.
While doing so, the Court noted that, because the IPC does not contain a gender-neutral provision for rape, the court will have to consider the relative positions of the accused and the woman in terms of dominant subordinate roles.
Kerala High Court Observed that “It should be noted that the statutory provisions of the rape offence as defined in the Indian Penal Code are not gender-neutral. On the basis of a false promise to marry and have sexual relations with a man, with the man’s consent obtained on the basis of such a false promise, a woman cannot be punished for rape. However, a man who falsely promises to marry a woman and then has a sexual relationship with her would be charged with rape by the prosecution. Therefore, the law creates the false assumption that the man is always in a position to dominate the woman’s will. “Therefore, the understanding of consent must relate to the dominant and subordinate relationship in a sexual act.
Justice Mustaque has also advocated for the standardization of marriage and divorce laws across all religions and communities. This sentiment was eloquently expressed in a landmark decision allowing a woman to file for divorce on the basis of marital rape.
Occasionally, India’s constitutional courts have been seized with petitions challenging gender exclusion in rape laws.
In 2017, the Delhi High Court issued a notice to the Central government in a public interest litigation (PIL) challenging the constitutional validity of Sections 375 and 376 of the Indian Penal Code (IPC) and requesting the formulation of gender-neutral rape provisions.
In 2019, the Central government defended the gender-specific rape law before the High Court, stating that the decision was made because the majority of sexual harassment victims in the country are female.
In 2018, the Criminal Justice Society of India filed a petition with the Supreme Court challenging the constitutionality of Section 375 of the Indian Penal Code on the grounds that it is not gender-neutral and violates Articles 14, 15, and 21 of the Constitution because it does not account for rape of men and transgender individuals.
However, the Apex court declined to intervene.
