“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?” asked Justice A. Muhamed Mustaque.

The Kerala high court remarked that the offence of rape that arises out of a false promise to marry should be “gender-neutral”.

Justice A. Muhamed Mustaque made the observation while dealing with the child custody battle of a divorced couple.

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

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.”

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.

The verdict that was passed thereafter said, “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.”

“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,” the court further added.