The Kerala High Courtwhile adjudicating upon a matrimonial dispute moved by a divorced couple over custody of their child. orally remarked that the offence of rape should be made gender neutral.
During the course of the trial it was brought up before the Court that the husband had been accused of rape on pretext of false promise of marriage but there’s no evidence to substantiate this allegation, and that he is currently on bail. The Hon’ble Bench remarked that section 376 of the Indian Penal Code is not gender neutral. If a woman tricks a man into false promise of marriage, she can’t be prosecuted, and this kind of law isn’t fair.
The Hon’ble Bench also had earlier this year in another case titled Ramachandran @ Chandran v. State of Kerala & Anr set aside conviction of a man for the offence of rape on false promise of marriage.
It noted that the consent of a woman on a promise to marry is an 'enigma for the prosecution to prove' while pointing out that the statutory provisions of the offence of rape in the IPC are 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. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman."
Therefore, the court has always been of the opinion that a woman shouldn’t be considered weak and subordinate while dealing with matters questioning sexual consent. Every case should be adjudged on facts, evidence and ground reality and not on an age old presumption that only a man has the power to force a woman into a sexual act.