Gender biased laws in India: Why are only women considered victims?

27 Sep 2022  Read 1159 Views

Generally, it is assumed that women can never be predators but only victims; one reason for this mentality is the definition of offences one beholds. In India, men's modesty (sexual dignity) is not recognised by criminal law because even the definitions under criminal law believe that modesty is an attribute that is only related to women. For example, Rape, as per the definition under IPC, mainly focused on penile-vaginal intercourse; however, after the 2013 criminal law amendment, penetration of any object was also included. 

With each day passing, offences against men are increasing; a crime has nothing to do with gender, and the perpetrator can either be male or female. But our Indian laws mostly consider women as victims as it is usually believed that men are stronger biologically. There has now been a developing realisation of the said fact that male exploitation does indeed take place. There have also been a few countries, such as Canada, Finland, Australia, the Republic of Ireland and most of the states of the USA, that have embraced unbiased and gender-neutral laws in their countries. So, what do you think? Does India also need a gender-neutral criminal law?

“Read this article to know the criminal law provisions that are gender biased as they consider only women as victims and men as perpetrators along with the conditions of men in India concerning crimes.”

Laws that are not gender neutral

1. Outraging Modesty

According to this, “whoever assaults or uses criminal force on any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be guilty of outraging the modesty of a woman.”

The meaning of modesty is the sexual dignity of a woman acquired by her since her birth. The sexual limit is highly personal to a woman, so no one can set a formula to judge the boundaries of the sexual honour of women. Let’s understand it this way, a slight touch on the shoulder of a rural woman may be unacceptable to her. But for urban women, it may be a casual gesture, so no strict formula can be set to analyse the modesty of a woman. The word ‘outrage’ implies a physical act to the modesty of a woman. 

This section considers only women as a victim, but what about men? Don’t they have modesty? 

2. Disrobing

Disrobing is a very heinous crime that again hits on a woman's self-esteem and dignity. A man will be guilty of disrobing if he compels a woman by assaulting or using criminal force to remove her clothes and be naked in any public place. In such a case, the perpetrator must intend to disrobe or compel a woman to get naked. However, what will happen if in case, the clothes of the woman get torn unintentionally then the accused will not be held guilty of such an offence.

This section considers only women as victims, but what if a man is compelled to get naked by a woman who may be high in authority? Being in the 21st century, don’t you think this vice-versa situation is possible?

3. Stalking

After the criminal law amendment of 2013, the term stalking was inserted into the criminal law of India. Previously stalking was covered under IPC just as harassment like voyeurism and sexual harassment against women under Section 354 and Section 509 for using words or gestures to insult a woman’s modesty, not men. But this was not sufficient as the essentials of these two sections had major shortcomings. So section 354D on stalking was inserted after the 2013 amendment.

Under section 354D, any man who— 

  1. follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by a such woman

  2.  or monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:   

This section considers only women as victims and men as perpetrators. Due to such gender bias laws, a woman who is a perpetrator might take advantage and walk free, and men will only end up either committing suicide or might keep mouths shut. So, don’t you think this provision must be made gender-neutral?

4. Voyeurism

It is not uncommon today that CCTV cameras are fixed secretly in the changing rooms or installed secretly in honeymoon suites or hotel rooms, thus, intruding on the privacy of a couple, men or women. But the criminal law in India considers it a crime only against women. In India, the cases of voyeurism are rising every year.

Under Section 354C IPC, any man who watches or captures the image of a woman engaging in a private act where she would usually have the expectation of not being observed by the accused or any other person will be punished for voyeurism. This section, too, considers only men as perpetrators, but what if a man is being observed or captured while doing any private act? Won’t he be allowed to file an FIR?

5. Cruelty/ Domestic Violence

In 1983, Section 498A was introduced in the IPC and, for the first time, made domestic violence against married women a crime. Section 498A talks about cruelty or domestic violence in which the perpetrator can be the husband and husband’s relatives because of the nature of the crime. 

When specific legislation, ‘the Protection of Women from Domestic Violence Act, 2005,’ was drafted, the question as to whether the definition of ‘respondent’ should be restricted to men or should be gender-neutral was debated. The conclusion was that Section 2(q) was drafted to keep it consistent with Section 498A and was not made gender-neutral. When women accuse their husbands under this section, the offence is non-bailable and cognisable.

This section again considers only women as victims and men as perpetrators. But with time, we all have witnessed so many false cases filed of cruelty by women in India and men struggling with the same. Then what is the remedy available for men in India?

6. Dowry death

Section 304B IPC states dowry was inserted within the criminal law of India with a motive to combat dowry-related harassment, violence, and death. Yet, every year almost 10% of cases of dowry are false. In one of the cases, the accused once argued that without any charges under Section 498A, IPC (cruelty), a conviction under Section 304-B, IPC cannot be sustained. But the 3-judge bench of NV Ramana, CJI and Surya Kant and Aniruddha Bose, JJ rejected this argument.

Section 304-B- dowry death states that:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.—For this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term that shall not be less than seven years but may extend to imprisonment for life.

This section also considers only women as victims and men as perpetrators. As we discussed, false cases of dowry death are also lodged yearly, and the husband and husband’s relatives are forced to deal with such cases and end up tormented. Isn’t there a need to include punishment under this section for false accusations by women?

7. Inducing a woman to compel her marriage

Section 366 of IPC defines kidnapping, abducting or inducing a woman to compel her marriage, etc. This provision makes kidnapping and abducting a woman to forcibly marry or have sexual intercourse with her a cognisable offence. Mere kidnapping or abduction is not covered under this section. It occurs only when the kidnapper or abductor abducts the woman with intent to marry someone against her will or force her to illicit intercourse, etc. Such an intention must not invoke after the kidnapping is done; the intention to compel her marriage or illicit intercourse must stand at the time of kidnapping itself.

This section again limits itself to women as victims. What if someone in a girl's confidence abducts a man to compel him to marry her? He will, too, need a remedy, right?

8. Rape 

Then in cases of rape, which was gender-biased too, it was somewhat made gender neutral, but legal experts disagree with this; the reason that it was slightly considered to have paved its way towards gender neutrality was that after the 2013 amendment, the scope of penetration was extended beyond penile-vaginal penetration. 

The definition of the offence of rape in section 375 was widened to include acts other than forcible sexual intercourse. The amended section 375 included forcible "penetration by a man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person"; "manipulation of any part of the body of a woman to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person"; and "applying his mouth to the vagina, anus or urethra of a woman or making her do so with him or any other person."

This section deals with women only, and rape of a male victim is not considered specifically, unlike POCSO Act which is a gender-neutral law.

9. The Sexual Harassment of women at the Workplace Act, 2013

Referring to the term sexual harassment, people directly assume that the victim is a woman and the perpetrator is a man. One of the prime places where sexual violence occurs is in the workplace. The Act in this respect, the Sexual Harassment Act for Workplace or The Vishakha Guidelines, has been laid down specifically to prevent sexual violence against women in the workplace. However, no remedy has been made available for men if they are sexually harassed in the workplace.

But what about men? It is a known fact that even men are subjected to sexual harassment at their workplace. Laws have been implemented to protect women against sexual harassment but ignored men again.

Decriminalisation of adultery in India

Another offence, adultery, which was once gender-biased, was dealt in by the Supreme Court, and a table-turning judgment was passed. The offence of adultery was pre-colonial legislation imposed by Britain under the IPC, and the law was highly gender-biased towards women, but in the year 2018, in the case of Joseph Shine v. UOI, it was decriminalised by the Supreme Court. 

Conclusion

Since a man is considered strong compared to a woman, the idea of a woman subduing a man seems absurd. But considering gender in attributing the status of a criminal to a person is, in our opinion, wrong. At the end of every offence mentioned above, we have asked why the provisions can’t be made gender-neutral. Hence, as of now, there are no specific laws that deal with offences against men, they are generally covered under harassment, but this will not suffice anyway. Gender-neutral laws must be implemented in India as 34.3% of men were affected by economic violence mainly, 28.6% of men were affected by physical violence, 27.5% of men were affected by emotional violence, and 20.4% of men were affected by sexual violence. 

About the Author: Kakoli Nath | 110 Post(s)

Kakoli Nath is a legal Content Curator at Finology Legal who pursued BBA.LL.B (5 years integrated course) & she is a patent analyst. She has pursued advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune.

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