The Kerala High Court on Wednesday said that rape should be made a gender-neutral offence under the Indian Penal Code, Live Law reported. The court made the oral observation while hearing a custody dispute between a divorced couple.
The child’s father is an accused person in a rape case, which his wife’s lawyer mentioned in the court. However, the man’s counsel submitted that the father was out on bail in the rape case, as a court had held that the allegations against him of “having sex under the false promise of marriage” were unsubstantiated.
To this, Justice A Muhamed Mustaque of the Kerala High Court observed that Section 376, which provides for punishment in rape cases under the Indian Penal Code, is not a gender-neutral provision.
“If a woman tricks a man under the false promise of marriage, she can’t be prosecuted,” he remarked, according to Live Law. “But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral.”
Section 375 (4), states that a man is guilty of raping a woman if he “knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.”
Justice Mustaque’s remarks on Wednesday echo a similar observation made by him in a case from a month earlier, where the court held that only if a woman’s bodily autonomy is violated, will sex on the promise to marry amount to rape, Bar and Bench reported.
The court had observed that the statutory provisions for rape are not gender-neutral, and the court will have to assess the “dominant and subordinate roles of both parties”.
A 2018 petition filed by the non-governmental organisation Criminal Justice Society of India before the Supreme Court had challenged the gender exclusion in rape laws of men and transgender persons, according to Bar and Bench.
The top court did not interfere in the matter noting that the “issue is valid”, but an existing provision cannot just be struck down without passing a new law.