Gender Specific Laws In India- A Prevailing Legal
In 2030, we want to be able to talk about a world that has achieved gender
equality, a 50:50 planet.
It has been multiple decades now that we are talking about EQUALITY. The word
has literally flooded the entire print and electronic media. Everybody seems to
be talking about equality, how it is essential for a healthy society and the
various means and methods to achieve the same.
One of the most notable manifestations of inequality worldwide is GENDER
INEQUALITY. Consequent to a very strong feminist movement that began towards the
middle of the twentieth century, throwing light on the gross inequalities and
atrocities that women suffer on a day-to-day basis, a need was felt to make
amendments in the law such that women could come on an equal footing with men.
The legislations we started with, were fairly, perhaps fully legitimate for the
times, but the dawn of the passing day has put men in such gullible a position,
that they are victimized by the so-intended women empowering
Much less has been said about how we have become a prison state by approving
virtually every possible draconian law in the name of curbing crimes against
women, condoning arbitrary arrests of ordinary citizens, and imprisoning them in
Thus, this decade has acknowledged the need of a GENDER-NEUTRAL society. The
Oxford Dictionary describes 'Gender Neutrality
' as an adjective that is suitable
for, applicable to, or common to, both male and female genders. It describes the
idea that policies, language, and other social institutions should avoid
distinguishing roles according to people's sex or gender, and emphasizes on the
equal treatment of men and women legally with no discrimination. We envision a
kind of society where equality will be established in its true sense, and
established not at the cost of any gender!
Given below is a detailed analysis of how the legislation in India is biased
against men, with special emphasis on the Indian Penal Code, 1860, followed by a
few suggestions to make the laws Gender-Just.
Unjust Indian Penal Code
The Indian Penal code, in its basic form, is the main criminal code of India,
which lists all the cases and punishments that a person committing any crimes is
liable to be charged with, and covers any Indian citizen or a person of Indian
S.2 of the said Code lays down that every person shall be liable to punishment
under this Code and not otherwise for every act or omission contrary to the
provisions thereof, of which he shall be guilty within India. As is established
by this section, the law does not distinguish between criminals, and every
person who has committed an offence is liable to punishment under the code.
However, the assumed mindset that all violence is male generated, does not
only create a gender divide in the society, but provides a shield to the crimes
perpetrated by women.
Women commit crime for the same reasons that men do. Crime has no gender, and
neither should our laws.
Now, let's throw some light on a few anti-male provisions of the Indian Penal
Code. Although the
instances are plenty, we will limit our discussion to the four major areas of law, viz., a) Dowry Death and
Cruelty against Women, b) Rape, c) Laws dealing with Modesty of a Woman.
Laws That Typically Favour Women
Via the Criminal Law Amendment Act 2013, four new sub-sections are added to
Section 304b (Dowry Death) And Section 498a (Cruelty Against Women):
The term 'Dowry Death' sparks off vivid imaginations in one's head of a woman
being taunted and harassed for money and finally, hanged to death within the
four walls of her house. Feminists have us believe that every unnatural or
untimely death of a married Indian woman is dowry death. Not only that, the
feminist hyperbole on bride killing and dowry harassment makes it look like
Indian men have an uncanny propensity to commit violence on their wives for
money and property.
Section 304B states that:
- If the death of a woman is caused by burns or bodily injury, or any
other abnormal circumstances,
- within seven years of her marriage,
- provided she has been subjected to cruelty or harassment by her husband,
or any of his relatives, for, or in connection with demand for dowry,
-such husband, or such relatives, shall be punished with imprisonment for a term
which shall not be less than seven years, but which may extend to imprisonment
Section 498A specifies that if cruelty and harassment are shown to be inflicted
upon a married woman by her husband, or by any relative of her husband, such
husband, or such relatives of the husband, shall be punished with imprisonment
for a term which may extend to three years, and shall also be liable to fine.
This section should be read along with S. 113A of the Indian Evidence Act to
raise a presumption regarding abetment of suicide by the husband of a married
The above two sections are non-bailable, non-compoundable, and cognizable
offences in India. The clear intention behind these sections is to fasten guilt
on the husband, or in-laws, though they might not, in fact, have caused the
death or injury! It has become a custom to claim that all the women have been
driven to suicide due to dowry harassment. Under these sections, even if the
allegation is false, there will be a trial and the husband is considered guilty
until proven innocent. The Supreme Court of India has termed this misuse of the
law legal terrorism.
Justice Saldana's remarks are a testimony to the way these laws are being
misused to the detriment of innocent citizens: ...we need to sound a note of
caution that the police and investigating authorities should not improperly
and technically jump to the conclusion that merely because death has
occurred that ipso facto a criminal offense has been committed.
In as many
as 44% of these cases prosecution is thoroughly unjustified. The
consequences of these charges are extremely grave because the accused
husband and invariably family members are placed under arrest. There are
serious social and economic repercussions.
According to the National Crime Records Bureau statistics, in 2012, nearly
200,000 people including 47,951 women were arrested on unestablished allegations
of dowry offences. Surprisingly, only 15% of the accused were convicted.
Every year, twice as many married men, compared to women, commit suicides
succumbing to verbal, emotional, economic and physical abuse by their wives and
in-laws. The recent demise of Pushkar Singh in 2008 is one of the countable few
cases that at least caught some media attention.
Sadly, even though his suicide
note bears evidence to the fact that he was financially and emotionally
destroyed because of false criminal cases filed against him and his family by
his wife, she was not even called in for questioning by the police until some
family rights activists mounted pressure on them. Deaths of these men make for
the brief stories in newspapers stating that a certain man killed himself due
to family issues or financial problems. Syed Makdoom's Case met a similar fate.
The Supreme Court, in the case of Sushil Kumar Sharma v. Union of India,
observed that such provisions are intended to be used as a shield and not an
The Court and the Legislature have to make certain changes if the laws of
matrimonial cruelty are to be of any deterrence. The current NDA government is
working on the proposal to make these sections compoundable. This means that the
law, if amended for the better, would have provisions for settlement between the
warring couple, if the court allows it.
Looking into the recent observations and the increase in the misuse of this
Section, following suggestions are proposed:
- One of the most significant moot questions is, are these laws really
helping curb the menace of dowry and cruelty against women? Is legal
terrorism the solution to all of women's problems? Are these laws really
changing the mindset of the people who continue to treat women adversely?
People who oppress women, continue to do it, whether with, or without the
existence of such 'women empowering' legislations. What we really require is a
social change, more than a legislative change.
- Section 304B of the said Code is only a gender-biased duplication of the
previous sections that deal with murder and abetment to suicide. This
section, therefore, must either be repealed, or amended and made
gender-neutral. Specifically, the word spouse must be used instead of
the words husband and wife.
- Burden of proof must lie on the complainant, and not on the accused, in
alignment with the Universal Declaration of Human Rights which proclaims
that everyone charged with a penal offence has the right to be presumed
innocent until proved guilty.
- In order to provide further relief, the offences could be made bailable
- Women and their families, who file such false complaints, must be
penalized heavily, either by way of fine, or imprisonment, or both.
Section 375 (Rape)
According to S. 375 of the IPC, you have to be a man to officially rape, and a
woman to officially get raped! The section does not recognize men as rape
victims. India's anti- sodomy law, Section 377, is the only resort for male
victims of sexual offences. However, the law is fraught with challenges. Even in
cases where a male victim is assaulted by a male attacker, it is not actually
considered as rape. The law does not outline any difference between consensual
and non-consensual sex between male adults. Moreover, if a female is the
perpetrator, the victim is left with no option to seek justice!
It is interesting to note that in the Criminal Law (Amendment) Ordinance, 2013,
the crimes of rape and sexual harassment were gender-neutral. The term rape
was removed entirely and was substituted with sexual assault. However, strong
objections were raised by women's groups and the Act ended up making the
offences of rape and sexual harassment gender-specific. There are various
propositions put forth by feminists in support of this regard, such as, men not
being as vulnerable, them always wanting sex, women's incapability to rape men,
men not being similarly affected by rape, so on and so forth.
I have doubts whether a woman can commit rape; the reason is that a man has to
be aroused sexually to be able to have sex with a woman. If a woman tells a man
that he must have sex with her, it won't work because the man will be so
frightened and disorientated that he won't really be able to do it. Sarrel and
Masters (1982) conducted case studies on 11 men who had been sexually assaulted
by women. The men went through humiliation, anxiety, fear, anger and terror and
yet responded sexually. They had erections; several even reported ejaculation.
The authors even concluded that anxiety increases sexual arousal.
In a recent study, it was found that out of 222 Indian men being surveyed, 16.1%
had been coerced into having sex. Despite male rape not being researched as
widely as female rape, there are several statistics to suggest that men are
raped and the prevalence of male rape is wider than is generally presumed. For
instance, a 16-year-old boy claimed that his best friend's mother had been
sexually assaulting him for the past three months (2015). Male rape happens, but
is seldom reported. Undoubtedly, countries with gender-neutral rape laws
reportedly have the lowest rates of rape in the world.
Crimes like rape and murder do not see age, caste, colour of skin, nationality
and yes, even gender or sexual orientation. Rape is seen across the extremes of
age, sex and geographical boundaries.
All these facts indicate that there is a definite need to recognize and accept
that men are raped, they also become victims of physical abuse and violence, and
they deserve as much protection from such gross crimes, as women do. At a
broader level, do not all crimes affect different types of victims in different
ways? Yet, with a few exceptions, we prosecute based on the sameness of the
crime, and not the sameness of the effect. The latter would essentially imply
that certain victims are protected more than others, flying in the face of
equality before the law.
And in order for such crimes to be recognized, what is important is that they
must be reported substantially. We need to create an environment where the
plight of such men is also heard, without the fear of being ridiculed. It is
only the development and application of a gender-neutral law that will be
effective in improving the reporting and registering of such crimes. The
definition of rape must be reconsidered, sexual assault must be classified in
accordance with various degrees of harm caused by each, and each must be defined
in a comprehensive manner. Lastly, a system where one type of rape is given
priority over others in the name of protecting women is self-defeating. Women
and men (and other genders) need to unite and speak in one voice to build a
culture against rape.
Other aspects of Rape Laws:
- A man having sexual intercourse without a woman's will - No guideline as
to prove a woman's will here. She might have had consensual sex and still
allege rape with a vindictive attitude.
- IPC 376B/C/D – Public servants/higher-ups seducing a woman under their
position and having sex with her are liable to imprisonment. No such punishment
exists for when women seek sexual favours from men. Similarly, there are no
protections for men from false and frivolous allegations by women made with
- If a man has sex with a woman after promising marriage, he can't break
up with the woman. If he does, according to the laws in India, he's a
rapist. Reverse the genders and if a girl does the same, it will be labelled
as women empowerment.
- Age of consent: There is no age of consent for males. If a boy of 16 and
a same-aged girl have consensual sex, the boy will be charged with rape!
The facts highlighted above speak enough for themselves, and tell us how
significant and urgent the need for gender-neutral rape laws in India is.
Laws Relating To The Modesty Of A Woman:Section 354 deals with assault or criminal force with the intent to outrage a
woman's modesty. However, there is no such law made to protect the modesty of a
man! There are cases where women bully men, and go unprosecuted, because the law
of the country does not protect men from such crimes. The situation has become
so adverse that if a man accidentally touches a woman in a crowded bus, and the
woman protests even slightly, the man shall inevitably invite public outrage by
fellow passengers, without even being given a chance to speak for himself!
- Section A: Lists out all the incidences of unwelcome advances,
pornography, sexual remarks and favors which hurt the dignity of a woman,
making them punishable with rigorous imprisonment and fine. And guess what,
men's dignity holds no value in the eyes of the legislators, because yes,
men are always the perpetrators!
- Section B: Enlists any attempt to disrobe a woman against her wishes
liable to punishment for at least 3 years. Is it impossible to imagine if
such a crime can be committed against a man?
- Section C: Enlists voyeurism i.e. filming or taking pictures of any
woman involved in a private act as a crime with punishment of at least 1
year imprisonment. Yes, nobody thought of protecting men from a similar
- Section D: One of the most effective sections, which has criminalized
stalking a woman against her will and made it severely punishable with at
least 3 years of imprisonment. And men can never be stalked!
The water has literally touched the ceiling, and we urgently need a
gender-neutral IPC to redress the aggrieved men in our society, and protect them
from further victimization.
Section 509 deals with words, gestures or acts intended to insult the modesty of
a woman, and makes the perpetrator punishable with simple imprisonment for a
term which may extend to one year, or with fine, or with both. On the face of
it, such a legislation is gender- biased, and another instance of the numerous
such women safeguarding
Other laws, including an array of family laws, bill for protection of women at
workplace, alimony law, child custody laws, etc., are also very notable examples
of other enactments that are detrimental to men. However, they are outside the
scope of this paper, and thus, are .not discussed here in detail.
Is Gender-Neutrality Anti-Feminism?
The obvious answer is NO! Oxford Dictionary defines 'feminism' as advocacy of
women rights on the ground of equality of sexes. Yes, EQUALITY OF SEXES. There
were times when feminism was required, because women were subjugated due to
draconian patriarchal legislations. Today, however, the situation has changed.
Women have equal rights, and definitely, more legal privileges.
As seen above, the laws we have, are used as weapon against men and their
families. They are used to settle scores and take revenge. Since the basic
genesis of feminism is equality, we all would accept the fact that
gender-neutrality is the paramount step towards achieving it, and thereby,
establishing Article 14 of the Constitution in its true sense. Hence, gender-
neutrality is in no way against feminism. It rather seeks to achieve the
feminist objective of equality!
- Also, is it justified to protect one sex at the cost of the other?
- Are we really helping women by these pro women laws?
- Or are we still pushing them as well as
this country backwards by constantly telling them that they are weak and hence
need these extra benefits?
- How is depriving men enabling women?
What we need is
to spread legal awareness and awareness of women's rights among the poor and
illiterate in villages and help the real sufferers rather than create an
How To Achieve Gender-Neutrality?
Our job is not to figure out the 'how'. The 'how' will show up out of the
commitment and belief in the what.
Much has been said above regarding how our objective can be achieved with regard
to particular crimes.
Following are a few more suggestions made for our cause:
Justice consists not in being neutral between right and wrong, but in
finding out the right and upholding it, wherever found, against the wrong.
- What we essentially require here is accepting the fact that there can be
crimes against men, that men also suffer, and that women can be perpetrators
as well! We are really required to change our mindset! The process of
socialization in the Indian society is so sexist, that we are somehow unable
to accept that men can be violated as well! The kind of education that we
provide our children with, should be based on equality, and not on
- There have been campaigns and movements worldwide for the cause of men.
International Men's Day is celebrated on November 19 every year, from 2007,
in response to International Women's Day (March 8 of every year). We need to
set up a dedicated ministry to safeguard men's rights and welfare or set up
a men's commission, similar to those for the women. That would be equality!
- We, as a society, really need to inculcate Gender-Sensitivity among
ourselves, develop a feeling of respect and warmth towards the opposite sex,
and understand that in order to uplift one section; we do not have to
oppress the other! Wouldn't it be very hypocritical for us to proclaim
EQUALITY as a fundamental right, and then deny the same to men, through such
detrimental laws? The concept of 'Abala Nari', which is so deeply entrenched in the current
scenario, holds no water, as women have travelled a remarkable journey forward,
and are indeed, in the present set of circumstances, not lagging behind.
- Legally, we need to ensure that gender-neutral language is used in our
laws, and both the sexes are equally protected. Laws should not be based on
the presumption that only one of the sexes is the perpetrator, and the
other, a hapless victim! Strong legislations should be laid against false
complainants causing unquantifiable miseries to the innocent victims.
- If we really want to establish a gender-just society, we need to
recognize LGBT rights as well, because that will ensure both legal justice, and
societal inclusion of all communities.
- Lastly, we need to realize that crime has no gender, and everyone should
be deterred from committing it. It inflicts innumerable sufferings upon the
victim, and he deserves justice!
If we really want justice to prevail, if we really want people to have faith in
the law, if we really want to proclaim equality and dignity, if we really want
to rise above our shallow prejudices, if we really want humanity to supersede,
we must want gender-neutrality as the solution!
One day our descendants will think it incredible that we paid so much attention
to things like the amount of melanin in our skin or the shape of our eyes or our
gender instead of the unique identities of each of us as complex human beings.
A Step Towards The Gender- Neutrality
The 5 judge bench in the case of Joseph Shine vs. Union of India
497 unconstitutional. It was held by the Supreme Court that this section is
arbitrary in nature, violates article 14 and 15 of the constitution and
discriminate men and women.
The court also held that:
Husband is not the master of wife. Women should be
treated with equality along with men, and ancient notions of man being
perpetrator and woman being victim no longer hold good".
- Akhil Goyal
- Harsh Kumar