“Women and children can be careless, but not men.”
—From The Godfather

These words are reflective of the stereotypes in our society—of men being considered strong and decisive, while women are seen as the weaker sex. This also finds reflection in existing laws against sexual offences, which are women-centric.

Recently, in a noteworthy development, the Kerala High Court, while adjudicating in a child custody battle between a divorced couple, orally remarked that penal provision against rape should be made gender-neutral.

During the course of the hearing, the counsel representing the wife alleged before a bench headed by Justice A Muhamed Mustaque that the husband was unfit to take care of the child as he had once been accused in a rape case. In that case, he was accused of having sex with a woman under the false promise of marriage. On the other hand, the counsel representing the husband submitted that this allegation was based on an unsubstantiated claim and that he was currently on bail.

Expressing concern against men being prosecuted for tricking women into a sexual relationship on the false pretext of marriage, but not vice-versa, Justice Mustaque observed that Section 376 of the Indian Penal Code (IPC), 1860, which prescribes punishment for the offence of rape, should be gender-neutral.
He said: “Section 376 is not a gender-neutral provision. 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? It should be gender-neutral.”

Rape, as defined under Section 375 IPC, reflects centuries’ old mindset that men are the perpetrators and women are the victims. Rape laws in India continue to be regressive despite having undergone several amendments. Though the 2013 Criminal Law (Amendment) Act expanded the meaning of rape to no longer remain restricted to cases of penile-vaginal intercourse, but also to include penetration into the vagina, mouth, urethra or anus of a woman by a man using any object or a part of his body, it failed to recognise that men too could be victims of sexual offences.

At a time when many nations are pushing for gender-neutral rape laws, the legal position in India presupposes the perpetrator to be a man in rape cases. This traditional notion traces its roots to the patriarchal notions in society which are hindering the recognition of sexual offences against men in our criminal justice system.

The debate around bringing gender neutrality within the country’s rape statutes has been on for a while. Some argue that as India is a male-dominated society, it is not ready for gender-neutral laws and that including women as perpetrators would result in harassment of an already oppressed group. Others argue that not changing the outdated laws results in male victims of sexual offences not coming out in the open to talk about and report their sufferings.
The issue of gender neutrality in rape laws was discussed for the first time in 1996, wherein the Delhi High Court in Smt. Sudesh Jhaku vs K.C.J. And Others observed that men who are sexually assaulted shall have the same protection as female victims and that women who sexually assault men or other women shall be liable for conviction as conventional rapists.

In 1999, the apex court in Sakshi vs Union Of India And Ors directed the Law Commission to examine the feasibility of expanding the definition of rape as contained in Section 375 of the IPC. Consequently, the 172nd Law Commission Report of 2000 recommended making rape laws gender neutral.

The recommendations of the Committee led to the Criminal Law (Amendment) Bill, 2012, which proposed to make rape a gender-neutral offence. However, before the Bill could be passed, the horrific Nirbhaya gang-rape incident took place.

Thereafter, the Justice JS Verma Committee was set up in 2013 for looking into possible amendments in criminal laws related to crime against women, which recommended gender neutrality of rape laws. These recommendations took the form of legislation by way of the Criminal Law (Amendment) Act, 2013, which widened the definition of rape without making any changes to include males as victims under the law.

The latest development in this regard is a bill tabled before the Rajya Sabha by Senior Advocate and parliamentarian KTS Tulsi seeking to bring amendments in criminal laws to make sexual offences gender-neutral by including men and transgenders, in addition to women, to be vulnerable to sexual offences.
In November 2018, the apex court refused to entertain a plea filed by NGO Criminal Justice Society of India seeking to amend the provision on rape under Section 375 IPC to make it gender-neutral. The Court observed that the issue is entirely in the Parliament’s domain.

“We are not inclined to interfere at this stage as the issues raised pertain to legislations to be made by the Parliament, for which adequate recommendations have already been made by the Law Commission,” noted the Bench headed by then Chief Justice of India Ranjan Gogoi.
Another petition filed by an advocate seeking to get declared the offence of rape, sexual assault, outraging of modesty, voyeurism and stalking as gender neutral was dismissed by the top court in February 2018.

Interestingly, in March this year, the Kerala High Court, while setting aside the order of conviction sentencing a man for forcible sexual act on a woman against her consent or on a false promise of marriage, had noted that the statutory provisions of the offence of rape are not gender neutral. Recognising that the law creates a fictitious assumption that the man is always in a position to dominate the will of the woman, a bench headed by Justice Mustaque observed: “It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is not gender neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution’s case of rape.”

Gender-neutral rape laws are the need of the hour. It appears that the lawmakers have neglected to take into account the principles of equality and equal protection of law as enshrined under Article 14 of the Constitution, as also Law Commission reports, while drafting legislation on rape and other sexual offences. This can be rectified only when the legislature promulgates gender-neutral laws to eliminate any inadvertent discrimination on grounds of gender and extends equal protection to all.

—Banshika Garg and India Legal Bureau

The Supreme Court on Wednesday issued notice on a  plea seeking removal of anomalies on the ground of succession and inheritance and make them gender-neutral, religion-neutral, and uniform for all citizens in the spirit of the Articles 14, 15, 21, 44 and international conventions.

The bench of Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian while issuing notice in the petition said that the bench had earlier issued notice in a similar petition. The bench also allowed the intervention application.

The petition has been filed by Advocate Ashwini Kumar Upadhyay alleging that the Centre has failed to provide even gender-neutral and religion-neutral uniform grounds of succession and  inheritance for all citizens in the spirit of Articles 14, 15, 21, 44 International Conventions. 

The petition stated,

“Uniformity in succession and inheritance is not only necessary to secure gender justice, gender equality and the dignity of women but also essential to promote fraternity, unity and national integration but the Centre has not taken any steps in this regard till date. Therefore, a blatant form of discrimination that is the prejudice in the succession and inheritance based on gender and religion is continuing.”

Upadhyay further submitted,

“The injury caused to the citizens is extremely large because gender-biased and religion biased personal laws relating to succession and inheritance are not only against the constitutional ethos of gender justice and gender equality, guaranteed under Articles 14, 15 but also against the dignity of women, which is an important element of right life to life and liberty guaranteed under Article 21 of the Constitution.”

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The petition has also sought to declare that the discriminatory grounds of succession and inheritance are violative of Articles 14, 15, 21 of the Constitution and frame gender-neutral, religion-neutral, uniform guidelines of succession and inheritance for all Indian citizens, and alternatively, direct the Law Commission of India to examine the laws relating to succession and inheritance of the developed countries and International Conventions in this regard and prepare a report on uniform grounds of succession and inheritance for all citizens in the spirit of Articles 14, 15, 21, 44 of the Constitution within 3 months.

A Public Interest Litigation has been filed in the Supreme Court seeking removal of anomalies in the ground of succession and inheritance and make them gender-neutral, religion-neutral, and uniform for all citizens in the spirit of the Articles 14, 15, 21, 44 and international conventions.

The petition has been filed by Advocate & social-political activist, Ashwini Kumar Upadhyay alleging that the Centre has failed to provide even gender-neutral and religion-neutral uniform grounds of succession & inheritance for all citizens in the spirit of Articles 14, 15, 21, 44 & International Conventions. Whereas,

The petition stated that

Mr. Upadhyay through this petition further submits that

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The petition has also sought to declare that the discriminatory grounds of succession and inheritance are violative of Articles 14, 15, 21 of the Constitution and frame gender-neutral, religion-neutral, uniform guidelines of succession and inheritance for all Indian citizens, and alternatively, direct the Law Commission of India to examine the Laws relating to succession & inheritance of the developed countries and International Conventions in this regard and prepare a report on ‘uniform grounds of succession and inheritance’ for all citizens in the spirit of Articles 14, 15, 21, 44 of the Constitution within 3 months.

-India Legal Bureau

New Delhi: A PIL has been filed before the Supreme Court, seeking removal of anomalies in the grounds of adoption and guardianship and making them uniform for all citizens. The plea says adoption laws should be gender neutral and religion neutral.

The plea has also sought directions to the Law Commission to consider the best practices of laws and international conventions and prepare a report on ‘Uniform Grounds of Adoption & Guardianship’ within three months.

The plea has been filed by Advocate Ashwini Upadhyay and through advocate Ashwani Kumar Dubey seeking directions for the formation of uniform guidelines for adoption guardianship for all citizens and declaring that the discriminatory grounds of adoption and guardianship are violative of Articles 14, 15, 21 of the Constitution.

According to the public interest petition, there is discrimination in the current practice of adoption, because while Hindus have a codified law regarding the same, Muslims, Christians, and Parsis (Zoroastrians) do not.

The plea stated that Muslims, Christians, Parsis approach the court under Guardians & Wards Act, 1890 as there is no common law. Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care becomes a major, he/she can break away all his relations. Moreover, such a child doesn’t have the legal rights of inheritance, which creates a lot of hardship and confusion among citizens. This can be very easily solved by having a uniform law of adoption and guardianship for all citizens.

According to the plea, even after 73 years of independence and 71 years of India having become a republic, the country does not have a gender-neutral and religion-neutral law of adoption and guardianship for all citizens even though adoption and guardianship form one of the most important aspects of human life.

Pointing out the difference in practices in different religions, the plea has stated that while under the Hindu law an adopted child has the right to inherit property and can become the legal heir, under the Muslim, Christian and Parsi law an adopted child is not eligible for any of those. For Hindus the adopted child becomes equivalent to a biological child of the adoptive parents, whereas it is just the opposite for Muslims, Christians and Parsis. Adoptive parents can be the natural guardian of the adopted son and his wife under Hindu Law but not in Muslim, Christian and Parsi Law.

The petition has explained how guardianship of a child works in case of Shia Muslims. It stated that in case of Shia Muslims, the mother is entitled to the custody of a boy until the age of two years and girl until she attains seven years of age if parents are separated. The custody after the prescribed period dwells upon the father and after him to grandfather and so on. The rationale given is that after birth, the mother might have custody of the child but the father has the guardianship, entitling him for the right to take any decision for the future of the child. The father has the ultimate authority to decide matters regarding the future of the child, be it education or contracting marriage, which is why the mother living far from the residence of the father was one of the grounds for disqualification of the mother for taking custody.

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The plea has stated that the Christians approach the court under the Guardians and Wards Act, 1890 for adoption as they have no adoption laws. Under that act, Christians keep a child for foster care and once a child under foster care becomes major, he does not have the legal right of inheritance.

-India Legal Bureau