Rape should be gender-neutral offence: Kerala HC on breach of promise to marry

The Kerala high court orally remarked that the offence of rape that arises out of a false promise to marry should be “gender-neutral”, noting that a woman cannot be prosecuted if she tricks a man with such a promise.

According to LiveLaw, Justice A. Muhamed Mustaque made the observation while adjudicating the child custody battle of a divorced couple.

During the hearing, the woman’s advocate said that the man had once been accused in a rape case. The man’s counsel said the allegation was based on “unsubstantiated accusations of sex under a false promise of marriage”, according to LiveLaw.

This is when Justice Mustaque expressed his concern that Section 376 (punishment for rape) of the Indian Penal Code (IPC) is not gender-neutral. He said,

“Section 376 is not a gender-neutral provision. If a woman tricks a man under false promise of marriage, she can’t be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral.”

According to LiveLaw, Justice Mustaque was part of another bench which delivered a verdict earlier this year in which the court observed that the statutory provisions of the offence of rape were not gender-neutral.

“It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is not gender-neutral. A woman, on a false promise of marrying and having a 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 a sexual relationship with the woman would lead to the prosecution’s case of rape,” the verdict said, according to LiveLaw.

Under the breach of promise to marry, a man who convinces a woman to consent to a sexual act saying that he will eventually marry her, but goes back on his promise, can be prosecuted for rape. However, mere reneging on the promise does not amount to rape. The prosecution must demonstrate that the man never intend to marry the woman and deceived her into consenting to the sexual act(s).