In a noteworthy development, the Kerala High Court orally remarked that the offence of rape should be made gender-neutral while adjudicating upon a matrimonial dispute moved by a divorced couple over custody of their child.
Justice A Muhamed Mustaque made the observation when during the course of the case when the party brought up the fact that the husband in the case had once been accused in a rape case. However, the husband's counsel argued that he was currently released on bail and that the said allegation was based on unsubstantiated accusations of sex under a false promise of marriage.
At this juncture, the Court made an oral remark on his concern about Section 376 (punishment for rape) of the Indian Penal Code not being gender-neutral.
"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"
Notably, Justice Mustaque while delivering another judgment earlier this year had also hinted that the statutory provisions of the offence of rape in the IPC were not gender-neutral.
"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 a 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 a sexual relationship with the woman would lead to the prosecution's case of rape."