“If we try to get rid of one wave with another, we end up in an infinite sea.”
Gender Neutrality: It means something neutral, which sees all genders alike, and most of our laws are gender-neutral. There are only a handful of our gender-specific laws.
Gender Neutrality is when we look at a crime or behaviour that is wrong, irrespective of who is committing that behaviour.
In the POCSO Act, 2012, a child is defined as "any person below eighteen," regardless of gender. Using the word 'any' denotes equality for all genders.
Gender Neutral means the view that policies, language, and other social institutions should avoid distinguishing roles according to people's sex or gender.
We live in a gendered world & absolute equality of gender equality of the genders irrespective of any considerations in a gendered world might be a shame or injustice. We cannot deny substantive equality; that is what our constitution declares that we are all equal.
A POSITIVE DISCRIMINATION
Marriage gives a license to kill neither to the husband nor to the wife, and marriage does not permit abuse of the other party. However, the institution of marriage has undergone significant changes in the last two decades as a traditional system. What happens in our society is that we always look for a person who is taller, more potent, elder, more educated, well settled, earns more, and has a good family background, and then what does society do? They send their daughter with him to his home with his family.
The differences are inevitable when two people stay together, but in this kind of tradition, it is the girl who finds herself in a vulnerable spot; whenever any abuse or violence takes place within a family, it is tough to prove all this in courts of law because that asks for pieces of evidence and witnesses. People do not testify against family members. Neighbours are reluctant to intervene in others' affairs, so what do we do?
We cannot deny that men are also subjected to physical, mental, financial, and emotional abuse. However, the numbers are significantly less than violence against women. Most women are suffering violence within their families, so how we protect our women should be the more significant concern. Our Constitution guarantees protection and equality, so what we did was we invoked Article 15(3) to enact a special law for them earlier. Also, we had laws to punish the offenders, but they offered no reliance to the victim; thankfully, in 2004, we got the DV act which is for the protection of women against domestic violence act which provides prompt relief to the victim. It is only to give relief to the women in the form of maintenance, restraining order, and custody of children; the objective of DV is to protect it, not to punish the men.
Gender-Specific Laws: A Real Necessity
So, when we say that this is a gender-specific law only for women, it is just doing something where the law was lacking because of this loose kind of institution that marriage has become in which women are mainly at the receiving end. However, when we talk about men being abused in this institution of knowledge, they already have gender-neutral laws. There is the law against criminal assault, and there is the law against any hurt or grievous hurt, and that does not say that if this wife has hit a man, we are not going to register in FIR; we already have laws. The gender-specific laws we are explicitly talking about have been made to protect women because, ideally, what would happen if a woman is always on the receiving end? It is challenging for her even to register an FIR.
Nevertheless, these are specific laws which are in addition to laws that we already had which provide easy and quick redress to a large number of victims of violence, and that is why women are in more significant numbers constitute the majority of victims and that is why we have got this DV Act. I agree that men need more protection, but for that, we should not be diluting the existing laws. We need to broaden our safety.
However, removing all laws seemingly protects women because there is no longer any reason to protect women. One cannot deny the enormous power imbalance, political power, economic power, social power, cultural prejudice, and traditional discrimination that is there. That is why we have these laws to make a difference in how we approach law.
If we look at under-reporting in all countries. However, the level of under-reporting here in India is enormous, not only for rape. It is all kinds of crimes, so comparing the way that crime statistics are collected in the UK and US is not worth it because our reporting of crime and data collection do not match those standards that we have to accept. In cases of false accusation, a man can file a case of false accusation, but it is complicated to do because everything in terms of accessing justice is difficult to do, and that is for both sides; that is why women do not file an FIR whatever is happening to them, and that is why we cannot have a flat playing field because a level playing field would be unjust.
However, the culture of our country also makes it a laughable issue for a man to go to a police station and say, "I have been raped."
GENDER BIASED LAWS
Maintenance under Section 125 of the Code of Criminal Procedure, 1973:
Section 125 of the Code of Criminal Procedure, 1973 discusses the concept of maintenance in India and the laws that extend the right to maintenance to the wife and her parents and children.
Maintenance in itself is a part of social justice. A man's fundamental duty is to maintain his wife, children, and parents as long as they cannot maintain themselves.
The maintenance law was exclusively made with an intent to radiate a significant duty on the male to maintain their dependents.
Hindu Marriage and Adoption Act are also considered gender-biased and compel a duty upon only men to maintain their wife and children.
It has been advocated that Section 125 CrPC be declared unconstitutional in violation of Article 14 because the burden of providing maintenance is only on men.
Section 375 & 376 of IPC: The predominance of a man has been shown in many sexual crimes such as Rape, Stalking, Voyeurism, and Sexual harassment. The FIR (First Information Report) for these sections can be filed only by a woman.
As per Section 375 of the IPC, there has to be a man to rape and should be a woman to get raped. The section does not recognize men as rape victims.
Section 354 of IPC: deals with assault with intent to outrage the modesty of a woman; however, there is no such law to protect the modesty of a man.
Section 498A of IPC states that a husband or any relative of a husband who commits an act of cruelty on a wife is subject to imprisonment up to a term of three years as well as a fine.
Surprisingly, no law in India states any punishment if women commit an act of cruelty to men though such a situation does occur and is possible.
THE LEGAL CONTENTATIONS
In the case of Bodhisattwa v. Subhra Chakraborty and Narendra Kumar v. State (NCT of Delhi), The Supreme Court of India accepted the contention that rape violates the fundamental human rights enshrined in the Indian constitution, namely the right to life and personal liberty. However, Indian rape laws persist with the traditional notion of rape wherein only females can be a rape victim and henceforth violates the human rights of men.
Countries like the United States, England, etc., also have gender-neutral laws. Thus, it is only logical that India should have Gender Neutral Rape Laws as well.
In the case of Rajesh Sharma v. The State of Uttar Pradesh
It has been observed that most of these complaints are filed in the heat of the moment over trivial matters. Many of such complaints are not bona fide. When a complaint is filed, implications and consequences are not visualized. The complainant and the accused are sometimes harassed unnecessarily due to such complaints.
Sudesh Jhaku v KC Jhaku
The court was required to determine whether, before 2013 definition of rape could be interpreted to include non-penetrative sexual acts.
However, the court also went beyond its mandate to opine on the issue of gender neutrality. The judge noted that the offence of rape was the sole avenue under the Indian criminal law for dealing with heinous acts of sexual assault before quoting the following passage from California Law Review*
Men who are sexually assaulted should have the same protection as female victims. Women who sexually assault men or other women should be as liable for conviction as conventional rapists.
Considering rape as a sexual assault rather than a particular crime against women might do much to place rape law in a healthier perspective and reduce the fantastical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions.
SOME OF THE RECENT CASES WHERE MEN BEING FALSELY FRAMED
Story of Vishnu Tiwari
This is a case of false rape in which Vishnu Tiwari has been in jail for 22 years. The woman died at 22 years due to some biological condition. The woman's husband and father-in-law trapped Vishnu Tiwari because they had some land dispute. Furthermore, the government had done nothing to trace the people