“Rape should be made gender-neutral”: Kerala High Court in Matrimonial dispute case

The Kerala High Court recently noted that the offence of rape should be made gender-neutral in a matrimonial dispute case. The court was hearing a plea moved by a divorced couple over their child’s custody.

A single bench of Justice A Muhamed Mustaque notably stated, "Section 376 (of 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. But a man can be prosecuted for the same offense. What kind of law is this? It should be gender-neutral."

The observation was made when the party brought up the fact that the father/husband had once been accused in a rape case. To which, the father/husband’s counsel argued that he had been released on bail for the same and the allegations were baseless, made of accusation of sex under a false promise to marry.

Recently, in Ramachandran @Chandra v. State of Kerala, Justice Mustaque had penned that the statutory provisions of the offence of rape under the Indian Penal Code (IPC) are not gender-neutral.

"It is to be remembered that the statutory provisions of the offense of rape as understood in the Indian Penal Code, are not gender-neutral. A woman, on a false promise of marrying and having sexual relations with a man, with the consent of the latter obtained on such a false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relations 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," observed the court in the aforementioned case.