KOCHI: Section 376 [which deals with rape] is not a gender-neutral provision. If a woman tricks a man under the false pretense 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,” Kerala High Court Judge A Muhamed Mustaque observed last week, according to news reports.
The statement received bouquets as well as brickbats. While men’s rights activists welcomed it, experts cautioned that making rape laws gender-neutral would have far-reaching consequences. According to Indian law, sexual intercourse based on a promise to marry is considered rape, if the case meets certain conditions. The case would stand only if the court concludes that the accused had mala fide intentions. Also, it has to be proven that the accused never had the intention to fulfil the marriage promise. Of late, many courts have ruled that a man cannot be charged with rape solely on the accusation of breaking his word.
Now, following Justice Mustaque’s observation, a question that popped up was on a role reversal — a woman breaking a marriage promise after sexual intercourse. “The judiciary and the Constitution have made provisions for vulnerable communities. The rape laws recognise the power imbalance in society when it comes to gender. That is why they favour women, the vulnerable community. That is why, under Section 376, men are not considered victims. Men have provisions to file assault cases, not rape cases,” notes advocate Beena Pillai.
Centre for Constitutional Rights Research and Advocacy founder Sandhya Raju George — who was in the panel of advocates representing the nuns in the case against Bishop Franco Mulakkal — also highlights the “power imbalance between genders in our society”.
“In most cases, men rape women as they want to prove their power, afforded to them in our society due to their gender,” she says. “Moreover, women are always shamed in our country and even blamed for the crimes committed by men against them. Let’s face it, the ground reality is that the system is skewed against women.” Already women, in general, are scared and reluctant to come out and file cases, Sandhya notes. “So, making the rape laws gender-neutral will adversely impact our society,” she says.
Sandhya recalls many cases where, under existing laws, the accused walked free. “Consent is an ambiguous term,” she says. “It was only some years ago that the testimony of the victim was considered as proof against the accused,” she says. However, it is conditional — it is done so if she is credible and trustworthy.
Often, the police hesitate to file cases, alleges Sandhya. “Recently a woman, who was raped by her father, tried to file a case. However, due to the bad behaviour of the officer in charge, she was scared to move forward with the case. Even during medical examination, the healthcare staff were judgmental and behaved as if she was responsible for her plight. So, basically, society is not gender-neutral, so how can rape laws be?”
High Court lawyer Reghu Sreedharan believes not many are welcoming the idea. “Though at first glance it may seem progressive, we need to consider the ground reality,” he says. “Many might point to the misuse of rape laws against men. However, such fake cases are not even 3 per cent of the total volume.”
‘It is a very stupid statement’
J Devika, historian and social critic based in Thiruvananthapuram, opines the high court judge’s statement is the result of a judiciary that wants to appear neutral. “How can a judge make such blind comments? Don’t they know the reality of our country? Our country is very unequal, and that is why the law needs to protect the vulnerable sections,” she says. “It is a very stupid statement, I am sorry to say.”
‘Should discuss, study’
It was in February 2021, a 28-year old French woman filed a case in Goa regarding sexual violence she suffered at the hands of another woman. Her complaint met most criteria for sexual violence. But, notes advocate Arun Kumar K S, India’s laws do not recognise women as perpetrators in rape cases involving adults. “So, it is a welcome move if the law becomes gender-neutral. However, as they say, conditions apply,” he adds.
A representative of LGBTQ rights organisation Queerala says, “Section 377, which is not scrapped unlike what many believe, has removed the term ‘unnatural sex’. The Supreme Court ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional. But it remains in force relating to sex with minors, non-consensual sexual acts, and bestiality. Men can file sexual violence cases against other men under this section,” he says.
Arun concurs: “Under Section 377, men can report against men. However, there are no provisions for a woman to file a case if her violator is a woman. In such cases, a gender-neutral law would help.”
But would it help the vulnerable or be misused is the big question, he asks. Arun recalls the infamous case of a father forcefully making his son file a sexual assault case against his mother. “Many take extreme measures when it comes to legal battles,” he says. “So, though such ideas sound brilliant initially, you need to study the consequences.”
Arun also highlights the issue of counterclaims by the accused in rape cases, if laws are made gender-neutral. “Imagine a genuine rape case. The accused man can file a claim saying it was the victim who raped him. This means the law turns against the victim,” he says. Beena Sebastian, founder of the Cultural Academy for Peace, an NGO committed to the advocacy of women’s and children’s rights, believes the judge’s observation is progressive, but would do more harm than good.
“It is a welcome comment and we should discuss and study it. Especially when we look outside of the gender binary concept,” she says. “However, even now, with such favourable laws, rapes are on increasing by the day. We need to analyse how a gender-neutral law would ultimately affect women, especially women from vulnerable communities.”
‘Many fake cases’
Men’s Rights Kerala secretary Gokul P R welcomes the judge’s comment. “There are many fabricated cases being filed against men. What we need is not infringing on women’s rights, but making sure the investigation is genuine and proper,” he says. “The legal system should be overhauled so that all victims receive justice. Also, people filing fake cases should get punished.”
Gokul highlights cases of women filing false allegations for money. Men’s rights activists have, for long raising the issue of blackmailing in the name of fabricated domestic cases.“Also, in some divorce cases, the woman might be looking for just a divorce. However, the lawyer would advise that unless there are incriminating accusations, the case would move slowly. For a faster judgment, many women file fake domestic abuse cases,” he says. Gokul, however, says he has never come across a man accusing rape by a woman. “Men might get raped by other men. Say, in prisons. But I have never come across a case of a woman being the perpetrator against an adult man,” he says.