This topic "Gender Bias in Section 375 of the Indian Penal Code" is a general
research on the system of gender discrimination and biasedness which we can see
in the Indian Penal Code of India and specifically in the Section 375 which
states about rape. Researcher's observations and conclusions are based upon the
secondary materials and this research based on the intrinsic and extrinsic
aspect of the paper. The methodology adopted by the researcher to draw
conclusion about the topic is basically depended upon this doctrinal research.
The Researcher took the help of various articles and the book of Indian Penal
Code by Ratanlal & Dhirajlal. He also took help from some judgements from
Manupatra and public opinion but to a very limited scope which was basically a
feedback from his friends and the most non-exhaustive resource that is the
This paper aims to elaborate on the regressive and problematic nature of the
notion that only women can be recognized as the victims of rape and only man can
commit this crime. This is the main problem the researcher is observing with the
help of section 375 of the IPC and other rape laws in India
- How rape laws reflect the Patriarchy system in India?
- What are the limited relief available to male rape survivors?
- What are the possible problems associated with the gender-neutrality of
the crime of rape?
Rape comes under "Malum in se", which is a Latin phrase and it describes
something that is wrong or evil in itself. Now, "Malum in se" is different from
"Malum prohibitum" which means that something is wrong only because it is
prohibited by law. Rape is essentially a form of a sexual assault which involves
a sexual intercourse or sexual penetration which is carried out against an
individual and carried out without the consent of that individual.
rape is defined by Section 375 of the Indian Penal Code (IPC) and according
to the rape laws in India, only a man can commit the act of rape and only a
woman can be a victim of this crime. This stipulation is very wrong in itself.
This shows us the gender bias in this particular section of the Indian Penal
Even after expanding the concept of rape under the Indian Penal Code to include
non-penilevaginal acts of penetration, the concept continues to comply with a
gender-specific notion of rape, based on a predetermined classification of the
victim-perpetrator on the basis of their gender. The notion that the perpetrator
has to be a man and the victim a woman is wrong.
Herein, I will try to critique
this idea of gender specificity in Indian provision of rape law i.e. Section
375, on the grounds that it reinforces a binary notion of gender, and results in
gross under inclusion. Instead, it is more appropriate to negate the role and
involvement of gender in identifying the victims and perpetrators of the crime
Rape Laws: A Reflection Of The Indian Patriarchal Society
There are many provisions in the Indian Penal Code relating to sexuality which
supports not only Victorian notions of morality but also the non-agency of
women. The general principle behind rape in India is that, if a man has or
tries to have sexual intercourse with a female under eighteen years of age,
irrespective of her consent, he can be held guilty of rape in the court of law.
If the woman whom the man is having intercourse is his wife, and above fifteen
years of age, then the man is not guilty of rape. This principle clearly
makes us see the traditional view of rape which regards women as property of
man. Any act of sexual assault committed against women was then considered to be
a violation of a man's right of his property. Such a concept of rape carries
with it countless social disgrace.
This is because the value of a woman with
respect to this perspective is assessed with her "sexual purity", and because
men in our society are regarded as superior class and it is not accepted in the
society that rape could be a sexual offence against a man's autonomy too. Now,
it is important to identify rape as an assault on individual autonomy and lead
our society towards more gender neutral laws and legal processes.
believe that it is an absolute necessary duty of the legal system in India to
abolish the discriminatory court room practices, specifically those practices
which associate the societal standards of character and morality with the
integrity of the witness so that rape can be looked at as a crime and not an
issue of shame for the victim. Rape is maybe the most under-reported crime in
India irrespective of the growing awareness and media and public support for the
However, very few rapists are brought to the door of justice
and the victims are held responsible for "inviting it upon themselves". In cases
of women, their "chastity" is questioned and in cases of men, their not fighting
back to anything is considered disgraceful and non-masculine.
Having said this, it is clear that the idea of rape being holistically polluted
with stereotypes of the Indian society has its very own consequences. Denying
gender neutrality to this crime of rape not only discriminates against victims
of female-male rape but also preserve the theory of masculine discourse in which
"real men" are perpetrators and can never be victims. Besides, by always
illustrating a man as the perpetrator and refusing the fact to accept that men
can also be anxious and vulnerable, society prescribes a masculine behaviour
that is definitely aggressive.
The most problematic consequence of this is: a
man can not prosecute for rape in India. On the other hand, a woman cannot even
be punished as an abettor in the case of gang rape, a precedent well established
by Priya Patel v. State of MP , where the appellant was involved in abetment
to the crime of rape with her husband who was doing the actual penetration.
Currently, if we see, the male rape survivors can only seek justice under
anti-sodomy laws defined under Section 377 of the Indian Penal Code.
Problematically though, neither does this law consider sodomy as an actual rape,
nor does it attempt to differentiate between consenting and non-consenting acts
between two adults involved.
This section uses the phrase "voluntary carnal
intercourse against the order of nature" but does not talk about consent which
is obtained by coercion unlike Section 375 which explains the idea of "consent"
in a great detail. Furthermore, this phrase seems more relevant to the 19th
century concept of sex than the present day concept of sex.
This phrase has also
not been explicitly defined by the Indian Penal Code even though the carnal
intercourse in a heterosexual relationship is not criminalized. There are very
limited conviction statistics under this section; moreover, those victims who
were subjected to non-penile violations cannot even seek relief in the light of
Moving on to another inference which seems extremely strange to
me, if a man obtains the consent of a woman for sexual intercourse before the
marriage of both to each other and then does not marry her, he can be held
liable for rape. However, the stand taken by the Honourable Supreme Court in
this case, is that if the intention of the male is mala fide and he has evil
motives, then he should be convicted of rape.
To convict the accused in such
cases, the court must be sure beyond any doubts that since the very inception,
there was no intention to marry (Saleha Khatoon vs State of Bihar
). This does
not apply to cases where a woman gives unpleasant hints to a man to engage in
sexual activities with her on a fake pretext of marriage, unlike the earlier
other way around. According to my opinion, these differences in the law stem
from and then further feed the discriminatory practices arising from the
stereotypes about gender as discussed.
Possible Problems Associated With The Gender Neutrality Of The Crime
In response to the chances of making rape a gender neutral crime, the Centre for
Civil Society was faced by dissenting views because of following two main
- the idea of rape being viewed in isolation from female-specific
consequences for the survivor and
- the exploitation of gender-neutral language by men.
The former argument was argued because despite the feelings of humiliation faced
by both the genders, there are certain burdens placed on specifically female
survivors of rape. An example of this would be the value placed by our society
on maintaining female virginity, honour and 'modesty' is really high.
by the same logic, there are burdens placed on male survivors of being perceived
as homosexual which are stigmatized discourses. Now to counter this argument,
consider the fact that all the crimes affect victims in different ways; and yet
the state convicts based on the similarity of the crime (with a few exceptions)
and not based on the similarity of the effect of the crime.
If the state were to
prosecute based on the effect, it would mean that some victims are more
important than the others and it would go against the concept of equality before
law. The second argument regarding the gender neutrality is certainly valid but
its probability and potency cannot be predicted very accurately.
the possibility of a male rapist's counter-accusation of rape in response to the
female survivor's initial reporting comes under the area of the second argument.
However, while this is technically true, there is a wide range of
counter-accusations such as consensual sex and fabricated allegations which are
often being claimed by male rapists.
In every court of law, any accusation of
rape must be supported by valid proof and evidence. For women, there are certain
medical tests which the victims can recourse to, but for men, in lieu of
counter-accusations or not, proving rape will be a different and a more
difficult procedure altogether. It is extremely important to note that in
countries where Rape laws are gender-neutral, this kind of exploitation
(described above) by men is almost non-existent.
Justice Krishna Iyer in the case of Rafiq v. State of U.P
. observed and
remarked that, "a murderer kills the body, but a rapist kills the soul". When
the judiciary refuses to recognise an act of rape committed against a male
victim, then it is like denying the very spirit of the legislation and being
extremely mechanical in the application of law.
The only recourse to male
victims available under Section 377 also leads to the creation of a tragic legal
fictional phrase that "men can be sodomized but not raped".
It takes a huge
courage for a rape survivor to share their story to general public and denying
him justice because the crime done against him does not fit into the regular
picture frame of rape understood by the society is completely inhuman and
fallacious. After the 2013 amendment of the Indian Penal Code, the definition of
rape was expanded from understanding rape as just peno-vaginal penetration to
other sexual acts as well.
Moreover, changes to the definitions of "vagina" and
"consent"; as well as understanding physical resistance from the perspective of
a survivor were brought about too. After this amendment, if the law structure
understands women being raped broadly, can such type of an understanding not be
extended to men as well?
- Ratanlal and Dhirajlal's The Indian Penal Code, ISBN � 9788131251003.
- Indian Penal Code By S.K. Misra, ISBN � 8189530887.
- "Does Sexual Intercourse on a False Promise to Marry amount to Rape?", By Gayatri Chadha and Amitabh Tewari, 25 February 2013.
- "Gender Analysis of the Indian Penal Code", By Ved Kumari, 1999.
- "7 FAQs on Law, Sexual Violence and Section 375 & 376 of the Indian Penal Code", By Srishti Agnihotri, 22 August 2016.
- "India's law should recognise that men can be raped too", By Ramesh Lalwani, September 11, 2014.
- Act No. 45 of 1860.
- Ved Kumari, (1999), Gender Analysis of the Indian Penal Code.
- Section 375 (Exception), Indian Penal Code, 1860.
- 2006 CrLJ 3627.
- Gayatri Chadha and Amitabh Tewari, 25 February (2013), Does Sexual Intercourse on a False Promise to Marry amount to Rape?.
- 1988 (36) BLJR 678
- Ramesh Lalwani, September 11 (2014), India's law should recognise that men can be raped too
- 1981 AIR 559.
- Srishti Agnihotri, 22 August (2016), 7 FAQs on Law, Sexual Violence and Section 375 & 376 of the Indian Penal Code.