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? questioned Justice A. Muhamed Mustaque of the Kerala High Court earlier this month.
The high court orally remarked that the offence of rape that arises out of a false promise to marry should be “gender-neutral”, noting that a woman cannot be prosecuted if she tricks a man with such a promise.
These comments were made by Justice Mustaque while adjudicating the child custody battle of a divorced couple.
Now, as per a PTI report, several lawyers have reacted against this comment, questioning how can a Rape law be Gender Neutral. Women Rights Lawyers are in complete disagreement with some terming it as a “flawed understanding of the law” or that it “displayed a patriarchal mindset” and some even said it would be viewed as “absurd” as women cannot be seen as subduing a man.
Rebecca John
Supreme Court Advocate Rebecca John was amicus curiae in the Marital Rape PIL at the Delhi High Court. While the PIL was filed by petitioners in 2015, John was only brought in towards the end of arguments in the said PIL – January 2022 until May 2022.
Rebecca has always been a vocal advocate in support of criminalising Marital Rape. Now, disagreeing with Justice Mustaque’s view, Supreme Court Lawyer Rebecca John told PTI,
The entire premise of the judge was based on a flawed understanding of the law.
I am in complete disagreement, because Justice Mustaque seems to suggest that by making section 376 gender neutral, women who falsely implicate men can be prosecuted.
Please remember section 376 is a section used for prosecuting those who have committed rape. It is not meant for people who have made false allegations. So making it gender neutral will not solve the issue of false cases.
Create New Law If You Want To Address False Cases
John further said that making the provision would not solve the concern of the judge. She added,
If you want to prosecute people making false allegations, then you will have to have another provision but not under section 376.
2012 | UPA II Cabinet’s Proposal Of Making Rape Gender Neutral Offence Was Opposed By Women’s Groups
Other Comments To PTI
Advocate A K Preetha, who represents the victim in the rape case against Film Producer Vijay Babu, also disagreed with the High Court view and said there was a “highly misogynistic trend that is continuing as far as rape cases are concerned.”
She said that everyone was viewing such cases “through a tunnel view”. She added,
Why do they see that women would trick someone? That is the mindset which needs to be deconstructed.
How many false cases can there be out of 1,000? It would be a minuscule number of cases where the allegations are false. Therefore, a generalisation or stereotyping is not possible. Such generalisation is reactionary.
Quotes Article 15 (3) of the Constitution
Preetha then went on to add,
Even Article 15(3) of the Constitution provides for making special provisions in law for women and children. There is no gender neutrality there. That is how the amendment to rape laws too should be viewed. That is the intention behind it. That is because victims need protection. This is not an area which can be generalised or made gender neutral.
Raped By Our Wives Without Consent; Why Is Marital Rape Debate Not Gender Neutral?
Advocate Philip T Varghese, who represents actor Dileep in the 2017 actress assault case and related matters, has an entirely different viewpoint — instead of treating sexual relations on false promise of marriage as rape or making it gender neutral, “the better option would be to decriminalise it.” Expressing his views to PTI, Varghese said,
Every love relationship that one enters nowadays is not with an expectation that it would end in marriage. It may be so in olden times.
Therefore, going back on a promise to marry cannot be considered to be a criminal offence of that nature (rape). That is my feeling. It cannot be a criminal offence, be it a man or woman. Therefore instead of making it gender neutral, a better option would be to decriminalise it. It should not be a criminal offense at all.
He said that sexual relations on the basis of a false promise of marriage becoming rape “is not a proper concept in present day society” when people are literate, educated and better equipped to take care of themselves. He added,
It may amount to cheating in certain cases, but it cannot be rape. It may even be considered a breach of trust or promise, in the present scenario. By equating sexual relations on false promise of marriage with something as “drastic and heinous” as rape, you are “trivialising” the offense of rape.
One must note Delhi High Court Judge, Justice Rajiv Shakdher, Who Favoured Criminalisation Of Marital Rape Also Called For ‘Gender Neutral Rape Laws’. Read Below:
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Gender Neutral Rape Laws | Rebecca John – Amicus Curiae In #MaritalRape PIL – Calls Judge's Premise Flawed Understanding Of Law
Advocate A Preetha: "Highly misogynistic. Why do they see women would trick someone? Mindset needs to be deconstructed"
— Voice For Men India (@voiceformenind) June 21, 2022
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