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Home»Columns»Provision of Section 376 not gender-neutral, rape should be gender-neutral offence: Kerala High Court

Provision of Section 376 not gender-neutral, rape should be gender-neutral offence: Kerala High Court

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By Kanika Bhatnagar on June 2, 2022 Columns, Current News, Judiciary, Stories, Top Stories
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In a significant breakthrough, the Kerala High Court orally stated that while adjudicating on a matrimonial dispute brought by a divorced couple over custody of their kid, the offence of rape should be declared gender-neutral.

“The provision of Section 376 is not gender-neutral. A woman cannot be charged if she deceives a guy under the false promise of marriage. However, a guy can be charged with the same crime. What type of legislation is this? It ought to be gender-neutral”, Justice A Muhamed Mustaque of the Kerala High Court said.

The remark was made during a custody struggle between a divorced couple, rather than during a rape investigation. During the debate, the wife’s counsel mentioned that the husband had previously been charged with rape.

The husband’s attorney, on the other hand, contended that he was currently out on bond and that the allegation was based on unproven allegations of sex under a false promise of marriage.

At this point, the Court made an oral remark about his worry that Section 376 of the Indian Penal Code (penalty for rape) is not gender-neutral. 

“The provision of Section 376 is not gender-neutral. A woman cannot be charged if she deceives a guy under the false promise of marriage. However, a guy can be charged with the same crime. What type of legislation is this? It ought to be gender-neutral.”

Justice A Muhamed Mustaque

In April, Justice Mustaque and Justice Kauser Edappagath of the Kerala High Court ruled that sex on the promise to marry is only rape if it breaches the woman’s decisional autonomy.

The HC had overturned a lower court’s decision to sentence a man to life in prison for rape on the false promise of marriage. According to the court, the charge of rape on the false promise of marriage cannot be presumed simply because the accused had a sexual relationship with the complainant before marrying another woman.

“It is important to recall that the legislative provisions of rape as defined in the Indian Penal Code are not gender neutral. A woman cannot be prosecuted for rape if she made a false promise to marry and have a sexual relationship with a guy in exchange for the latter’s consent. A man who makes a false promise to marry a woman and then has a sexual relationship with her will be charged with rape by the prosecution. As a result, the law provides the false impression that the man is always in a position to control the woman’s will. As a result, permission must be understood in terms of the dominant and subordinate relationship in a sexual act.”

Gender-neutral offence Kerala High Court Live Adalat Rape Section 376
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