While hearing a child custody case between a divorced couple, Kerala High Court addressed the issue of lack of gender neutrality in the Indian Penal Code provisions dealing with rape offences.
“Section 376 is not a gender-neutral provision. If a woman tricks a man under the false promise of marriage, she can’t be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral,” Justice A Muhamed Mustaque.
The woman submitted that her ex-husband is accused of rape. After which, the counsel representing the man contended that he is released on a bail now and the case was built on unfounded rape allegations under a false promise to marry.
Earlier this year also, Justice Mustaque had delivered somewhat a similar judgment where it was noted that sex on a promise to marry will amount to rape only if it violates the decisional autonomy of the woman.
“It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, are not gender-neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution’s case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent therefore, has to be related to the dominant and subordinate relationship in a sexual act,” the bench had noted.