Top court refuses to interfere in the petition seeking gender-neutral rape laws

COURT: Justice A Muhamed Mustaque 

Recently, the Kerala HC made a pertinent observation regarding the lack of gender neutrality under the Indian penal code dealing with rape. The HC made this observation in response to a father's old rape accusation, where, his counsel argued that he is out on bail and that the case was built on unfounded allegations of sex under the false promise of marriage.

This situation prompted the Kerala HC to state that when a woman tricks a man into a false marriage, she is not prosecuted, but when a man does, he is prosecuted. The Law should be gender-neutral.

Justice Mustaque has also been a proponent of revamping marriage and divorce laws to make them uniform for all citizens regardless of religion or community. A landmark ruling allowing rape as a ground for divorce reflected that sentiment.

In India, constitutional courts have been seized of petitions challenging gender exclusion in rape laws from time to time. In 2017, the Delhi High Court issued notice to the Central government in a PIL challenging Sections 375 and 376 of the IPC and seeking it to be gender-neutral provisions. The Central government defended the gender-specific rape law before the HC in 2019, stating that the decision was made because most victims of sexual harassment in the country are women.

In 2018, a petition was filed by the before in the Top Court challenging the Constitutional validity of the rape provision on the ground that the provision violates Articles 14, 15, and 21 of the Constitution. As it does not constitutes rape of men and transgender persons.

The top court refused to interfere in the petition.