Is Law Biased Against Men – Brief Analysis of Indian Penal Code
Laws are made for the betterment of the society. While laws are supposed to bring balance and peace in the society, it tries to achieve that by being gender neutral and unbiased. However, the intent of legislature seemed otherwise. Criminal laws and especially Indian Penal Code shows that legislature never intended to make laws gender neutral.
And the major reason behind these gender oppressive laws seems to be the dominant nature of men, thereby treating them as oppressors and perpetrators of physical and sexual offences. The laws under the Penal Code seems to be framed keeping in mind the position that men are resilient and courageous persons, who cannot be subject to cruelty and torture.
Table of Contents:
- Gender biased Laws?
- Section 375 & 376
- Section 498A
- Section 497
- Conclusion
Gender Biased Laws: Indian Penal Code
Section 375 and 376: Section 375 IPC, which lays down rape as a punishable offence, starts with “A man is said to commit ‘rape’:, thus in the beginning itself, the section lays clear imposition that it is only man who can be subjected to punishment under this section and it is only women who can be treated as the victim under the section.
Furthermore, Section 376 IPC lays down the punishment for rape, which also provides for gender biased punishment and provides for punishment only in cases of rape by man but not by women.
Moreover, the Criminal Law (Amendment) Act, 2013 widens the scope of definition of rape and includes penetration of the penis into the mouth, urethra and anus apart from the vagina. Insertion of any other object into the vagina, urethra and anus was included within the purview of rape too.
However, still the section was only widened to protect women against rape and men was not included within the ambit of the section.
Supreme Court in the case of Sakshi v. Union of India, directed law commission of India to deal with the issue of gender neutral rape laws.
The same position was again reaffirmed in the case of Sudesh Jhaku v. KC Jhaku, wherein court articulated their preferences for the offence of rape to be redefined in gender neutral terms.
Consequently, Law Commission of India on directions of Supreme Court, framed its 172nd report, wherein it recommended that the definition of rape should be replaced by gender neutral offence, thereby offering the protection to men against rape as well.
However, soon after the Nirbhaya incident happened shocking the core of the nation, post which Justice Verma Committee’s was formed, which also suggested framing of gender neutral rape laws, however were vehemently opposed by various social women groups and thereafter, the report was not accepted by the central government.
Section 498A: One of the most used and misused section, it provides protection to women against cruelty by either husband or his relatives. The Section starts with “whoever being the husband or relative of the husband of a women”, thus again providing for protection only to women and treating only man as the culprit. The section was inserted in order to protect the interest of women from harsh marriage and physical and mental cruelty faced by wife at the hands of her husband and his relatives.
Even Supreme Court in the case of Sushil Kumar Sharma v. Union of India & Ors., observed that Section 498A was widely misused and such further observed that such misuse can unleash new legal terrorism, it still refused to quash the section being unconstitutional and ultra vires, holding that the provision was constitutionally valid as it was originally formed to protect the interest of women.
However, Supreme Court in the case of Arnesh Kumar v. State of Bihar & Ors. thereafter laid stress on the protection of husband from arrest and held that there is a need for exercising caution while dealing with the arrest of husband. Supreme Court further observed the misuse of powers by police officials, since the offence is non-bailable. Threfore, Supreme Court held that “no arrest should be made in a routine, casual and cavalier manner or on a mere allegation of commission of an offence made against a person.” Even after the directions by Supreme Court, Section 498A is one of the most misused laws, both by the wife and the police and the only one suffering here is the husband.
Section 497: The only law in this list, which was declared unconstitutional by Supreme Court. Adultery was made a punishable offence when a man has sexual intercourse with a women, who he has a reason to believe is someone else wife. Under the offence, only the man was punished for committing adultery and not the women. However, Supreme Court in the case of Joseph Shine v. Union of India, declared it unconstitutional holding that the initial purpose of the Section was to preserve the sanctity of marriage. However, sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow which is not penalized by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.
Therefore, Supreme Court held that the procedure for filing a complaint for the offence of adultery is unconstitutional, thereby striking it down.
CONCLUSION
Laws were gender baised in India from time immemorial. Legislature framed these laws at the time of male dominant society, where men were not believed to be subjected to cruelty at the hands of women. However, with the advent of society, women have been coming forward and have been standing at the same foot to that of men. In today’s scenario, various cases have came across where men have been subjected to cruelty at the hands of women. However, there being no laws for the safety of men, they had to suffer. Legislation had to develop laws keeping in mind the development of the society. However, legislature intent seems to be far away from that.