In a significant remark, the Kerala High Court noted that the offence of rape should be made gender-neutral under the Indian Penal Code. The statement was made by Justice A Muhamed Mustaque, while adjudicating upon a matrimonial dispute moved by a divorced couple over custody of their child.
The court made the observation when during the course of the case when the party brought up the fact that the husband in the case had once been accused in a rape case. However, the husband’s counsel argued that he was currently released on bail and that the said allegation was based on unsubstantiated accusations of sex under a false promise of marriage. 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. 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 a 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 a sexual relationship with the woman would lead to the prosecution’s case of rape’, the court noted. 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.
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