Offence of Rape under IPC should be made gender-neutral: Kerala High Court remarks

While hearing a heated custody battle between a divorced couple, Justice A Muhamed Mustaque made a pertinent observation regarding the lack of gender neutrality in the Indian penal provisions dealing with rape. .When an issue regarding the father having an old rape accusation against him came up, his counsel argued that he is out on bail and that the case was built on unfounded allegations of sex under false promise to marry.This prompted Justice Mustaque to comment on the general issue of Section 376 of the Indian Penal Code which prescribes the punishment for rape. "Section 376 is not a gender-neutral provision. If a woman tricks a man under 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 Mustaque orally remarked..If a woman tricks a man under false promise of marriage, she can't be prosecuted. It should be gender neutral.Kerala High Court.This remark echoes the observations in a recent judgment authored by the judge in which the court held that sex on promise to marry will amount to rape only if it violates the decisional autonomy of the woman. While doing so, the Court had observed that since the IPC does not contemplate a gender neutral provision for rape, the court will have to weigh the relative positions of the accused and the woman in terms of dominant subordinate roles."It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is 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 Court had said in the judgment..Justice Mustaque has also been a votary of revamping marriage and divorce laws to make it uniform for all citizens across religions and communities. That sentiment was expressed clearly in a landmark ruling allowing marital rape as a ground entitling a woman to divorce..Constitutional courts in India have, from time to time, been seized of petitions challenging gender exclusion in rape laws. .In 2017, the Delhi High Court issued notice to the Central government in a public interest litigation (PIL) challenging the constitutional validity of Sections 375 and 376 of the IPC and seeking framing 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 taken in view of the fact that victims of sexual harassment in the country are predominantly women..In 2018, a petition was filed by the Criminal Justice Society of India in the Supreme Court challenging the Constitutional validity of Section 375 of the IPC on the ground that the provision is not gender-neutral and violates Articles 14, 15 and 21 of the Constitution as it does not account for rape of men and transgender persons.The top court, however, refused to interfere.“This issue is valid but the provision which is otherwise valid cannot be struck down,” the Court had remarked while granting liberty to the petitioners to make a representation to the legislature.