This article is written by Guriya Kumari, a student of B.Com. LL.B. 5th year at K.K. law college
Introduction
Sections 375 and 376 of the Indian Penal Code, 1860, mentions about the conviction on the offence of rape of a woman by a man. Other than the rape laws, there have been many other acts such as the Domestic Violence Act, 2005 that are gender-specific and related only to women, such as sexual harassment or voyeurism where a perpetrator is always a man. Increased awareness about these offences in the society shows us that the main reason for committing a sexual assault of any form of violence many not just be to fulfil the desires that are sexually-oriented, but also to assert the perpetrators’ dominance.
Maintenance means money amount given towards the basic necessities of survival for a person in the world where he won’t need to be a vagrant or a destitute.
The basic necessities include food, cloth and shelter, later on more two words were added to this, and they are – education and health.
The entitlement of claiming maintenance is certainly based on the assumption that the claimant doesn’t have the sufficient means to support themselves.
The proceedings for the matter of maintenance are carried on in the Judicial Magistrate of First class.
Unable to Maintain does not mean a beggar, but a person who is earning a paltry sum of money.
The procedures of the proceedings in the matter of Maintenance are stated under the Code of Criminal Procedure, 1973, but the proceedings are done according to civil procedure.An application for maintenance is an interlocutory application made by one of the spouses in the going on proceedings for divorce.
Gender Neutrality
In essence, gender neutrality is the idea that gender should play absolutely no part in social roles and structures, gender identity, official policies, language, and other social constructions and/or institutions. Gender neutrality aims to abolish the idea that genders can play only certain roles, and propagates the idea that instances of discrimination can be minimized, if not neutralized completely, by forwarding the idea that gender has no place in the assignment of social roles.
Maintenance of a person to whom an individual with sufficient needs owes a duty is more than a mere financial support, maintenance as a legal concept is the measure of social justice and an outcome of the natural duty a man owes to maintain his wife, children and parents when they are unable to maintain themselves .
The reason why Parliament and the State Legislature have retained and amended suitably the provision of maintenance in Code of Criminal Procedure, 1973 can be understood from duties cast upon them by Directive Principles of State Policy, which endeavours to strive for social and economic welfare
in administration of our country. It is imperative to state that right to maintenance derives it’s origin from Art. 21’s right to live with dignity and has a wide impact on social-economic welfare of the society.
Furthermore, when fundamental rights are read and harmoniously construed along with Directive Principles of State Policy, it makes the duty of the state enforceable, thereby making right to maintenance an implied fundamental right under Art. 21, which is actionable against in case of non-observance as state now owes a duty for maintaining socio-economic welfare in the society through maintenance.
Gender-Neutrality: Equality and Egalitarian Society Concept
Section 125 has embodied the duty of state to make special provisions for women and children [Art. 15(3)] and at the same time not transgressed the principle of equality before the law, it will be imperative to briefly discuss the relationship Art. 15(3) and Art. 15(1) share together in order to get a clear view regarding the gender neutrality of Section 125 of Code of Criminal Procedure, 1973.
Art. 15(1) prohibits the state from discriminating any citizen on the basis of caste, sex, religion, race, place of birth or any of them. Art. 15(1) is violated only when the discrimination is just done solely on one of the mentioned basis of Art. 15(1). For example, in the case of Sheikh Hussein v. Sheikh Mohammad, court struck down a provision of Bombay Police Act, wherein no criminal action could be taken against a person born in Greater Bombay, whereas a person born outside Greater Bombay could be externed if he is convicted of any offence. Similarly, in Rajeshwari v. State of Uttar Pradesh, court struck down U.P Court of Wards Act, 1912 as it discriminated solely on the basis of ‘sex’ by allowing male proprietor to manage his property while at the same time denying female proprietor were declared incapable to manage her property, thereby not eligible for any derivable benefits from the act.
When Article 15(1) and Article 15(3) are read together, it seems that state can discriminate men against women by making ‘special provisions for women’, but it has to pass the test of reasonable classification. It is imperative to state that the courts have been quite liberal in upholding these special provisions in order to bring women out their miseries from Indian patriarchal society. However, the Supreme Court restricted its liberalism while adjudicating M.C. Sharma v. Punjab University, by upholding the unconstitutional validity of Punjab University Rule which bared male lecturers from getting appointed as a principal of Girl’s College, Court held that the rule is violative as there exists no intelligible differentia as to why a women principal would be able administer the school better than a male principal, the role of principal is more of an administrative task which requires personally developed skills and experience, thereby there exists no rational nexus as to why having a particular gender would render a candidate with more experience or expertise.
There is a common misconception regarding Section 125, when it comes to interpreting the section with respect to maintenance of parents, that only son is liable to maintain his parents. The renowned cases of Shah Bano Begumand Daniel Latif impliedly reinforced a common concept of a patriarchal society, wherein it is the primary duty of the male member to maintain his dependents. When this conception of viewing the maintenance is construed along with Art. 15(3), it makes exemption for women for maintaining anyone in their family. Courts in India have come across this challenge, which will be discussed in the coming section.
RESSISTANCE TO GENDER NEUTRALITY
Gender neutral laws have largely been criticized by giving various arguments. Some of them being: The society we live in is a patriarchal society which means men have the primary power and are the one who dominates. So having the same law to govern both is not possible. People consider rape to be only penile- vaginal penetration so being raped by a women is physically impossible and proving a male’s accusation against a woman, would be difficult to prove which increases the chances of registering false case. The centre has given the explanation that the legislation is there to check the increase in sexual offences against women and there is no need of alteration in section 375.
Acts under which Maintenance is awarded
Under The Code of Criminal Procedure, 1973 the maintenance is awarded under section 125 in which the grounds of maintenance are specified. Section 126 of the same is regarding the procedure of the proceedings and as to where the cases of maintenance can be filed. Under section 127 the alteration and the terms of alteration are stated. Person of any religion can apply through this section.
Under Protection of Women from Domestic Violence Act, 2005, Maintenance is stated under section 20. In the case of, Prakash Babulal Dangi v. The State of Maharashtra, according to section 36 of Domestic Violence Act, 2005, the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law.
Under Hindu Marriage Act, 1955 under Section 24, 25 and 26 the Provision of maintenance is stated. This is specifically for person married according to Hindu Marriage Act, 1955.
Muslim Women (Protection of Rights on Divorce) Act, 1986 there is a provision for availment of permanent maintenance under section 4. The Muslim women can also avail for maintenance under section 125 of the Code of criminal Procedure, 1973, but only after they have tried to get maintenance under section 4 of the MWA, 1986. Before Mohammad Ahmed Khan v. Shah Bano Begum, Muslim women were not treated well, who were being divorced from their husband without any valid reason and with the burden of maintaining their children at an old age.
Parsi Marriage and Divorce Act, 1936 the provision for maintenance is stated under Section 39 – 41. Section 39 is regarding the Alimony Pendente Lite, Section 40 is regarding Permanent Maintenance and Section 41 is regarding the payment of money to wife or to her trustee.
Case laws on maintenance: Gender-Neutrality on Maintenance of parents
Case – V.M. Arbat V. K.R. Sawai
Appellant, Mrs. Vijaya Arbat is a medical practitioner and married daughter of the respondent. Respondent soughted for maintenance of ₹500 from appellant on monthly basis. Appellant contested that she is not obliged to maintain her father under Section 125(1)(d). Judicial Magistrate overruled her objection and held that the appellant is bound to give due maintenance to her father. Appellant made a revision application in High court. High Court reaffirmed the order of judicial magistrate. The appellant
filed a SLP (Special Leave Petition) under Art. 136, the appellants emphasised on the word ‘his’ in Section 125(1)(d), which makes only son liable to maintain his parents.
The Supreme Court rejected this contention by instating that the word ‘his’, which is not defined in Cr.P.C but derives it’s meaning from §8 of Indian Penal Code and Section 13(1) of General Clauses Act, which includes female gender within the male gender. The Supreme Court furthermore held that “it is the moral obligation of a son or a daughter to maintain his or her parents. The Indian society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm”.
Case -Vasant v. Govind Rao naik
Applicant filed a criminal revision petition against a maintenance order passed under Section 125 against him. He contended that maintenance order has solely to be executed by him, when he has two younger siblings, i.e. a younger sister and brother. Court was in this proceeding had one question of law, whether parents seek remedy only against one or more of their children?
Court held that it would be unjust and arbitrary to leave the onus of deciding which child parents want to seek remedy from, thereby in interest of justice, equity and good conscience it would be prudent to make all three children liable for maintaining their parents, when all of them have the sufficient means of sustaining themselves and their dependents.
The essence of the abovementioned cases when understood in terms of legal perspective, there exists a primary duty of maintaining remains gender-neutral, i.e. both son and daughter owes a legal as well as moral duty to maintain their parents, as seen from the above mentioned cases and co-relating it with Indian circumstances, generally sons had the duty to maintain his parents, now the judicial interpretation has extended the ambit to both daughters and sons. The main reason behind including daughters within the ambit of maintenance was in light to changing roles of women in society, now in India there is an equal participation from both the genders.
Drawing inference from above mentioned points, it is clear that women are also in a position to maintain a dependent, then why amendment has not been made by the parliament to include husbands as person of neglected means (financially) and thereby liable to be maintained by his wife. As far as the Indian Statutory Laws goes in this regard, the only legislation which supports this claim is Section 24 of Hindu Marriage Act 1955. This leaves husbands of other minor religions such as Muslims with no remedy to claim for maintenance.
GENDER NEUTRAL LAWS IN DIFFERENT COUNTRIES
In Scotland, by “Sexual Offences (Scotland) Act, 2009” there has been changes in their rape laws and are redefined it as:
“The intentional or reckless penetration of the penis (to any extent) into the vagina, anus or mouth of another person, without that person consenting and without any reasonable belief that consent was obtained”.
The term “women” was replaced by “person” to include the male victims in the ambit of definition. Common law countries and Civil law countries like the USA, Canada also attempted to make their rape
laws gender-neutral so as to protect the rights of the males as well. Definition of rape as per (United States Department of Justice, 2012) is:
“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
Canadian government in the year 1983 passed “Bill C-127” that abolished offence of rape and provided three graded categories of sexual assault. Aligning with US laws, Canadian Law also recognizes penetration through object constitutes rape and penile penetration cannot be the sole ground for the offence of rape.
INDIAN LAWS FOR RAPE
The Justice Verma Committee Report, 2012 favored gender-neutral laws and even the Criminal Law (Amendment) Ordinance of 2013, upheld the committee’s view. However, after 58 days the bill was repealed and replaced by The Criminal Law (Amendment) Act, 2013.
In India, the laws related to rape, stalking, voyeurism and sexual harassment are gender specific i.e. the perpetrator can only be a man. Section 375 of IPC stated that “A man is said to commit Rape…” which means that men can never be a victim in case of rape.
This arises from the assumption that rape is an act of sex alone to satisfy the sexual desire of the perpetrator. The only question that is to be asked is why perpetrator is gender specific in our law. On 16th June 2018, a 20-year-old boy had to endure the sexual assault by five men in Ghaziabad and a foreign object was inserted into his rectum but because our law does not account for such offence, the case was registered under section 377 of IPC rather than section 375.
Article 15 states that, “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. But, Article 15 (3) states that “nothing in this article shall prevent the State from making any special provision for women and children”, we know that women in our society are the most vulnerable. But this does not change the fact that male rape victims should also be protected and be given equality to be heard. Though there’s POCSO (“Protection of Children from Sexual Offences”) for the sexual assault of male child such provision does not exist for an adult male.
When the Supreme Court of India in 2018 declared Section 377 to be outlawed, various questions remained unanswered. In India, the only way to get justice on men’s rape is through Section 377 of the IPC, which does not regard it as a rape. With the recent amendment to Section 377 of the IPC, consensual sex between men is decriminalized but non-consensual intercourse is considered to be sodomy or coercion. Rather of treating it as a heinous crime of violence, it just finds it a coercion.
“I was raped by six drunken men. They verbally abused me for being a homosexual, and took turns filming the whole thing,” he says. Confused, ashamed and angry, Vinodhan did not even seek medical help. “I thought everyone would blame me for hooking up,” he says. “I did not know how the police would treat a gay man.” (Menon, P.)
This is one of such cases which we come to but there are hundreds of others which remain unnoticed. Because of the non- availability of gender neutral laws, there is a grey area so many cases go unreported or even the offender gets minimal punishment. Even a PIL was filled in Supreme Court by Rishi Malhotra
in the case Rishi Malhotra v. Union of India to make rape laws gender-neutral which was dissmissed by the court.
CONCLUSION
If the special law does not have any provisions for some right, then that right shall be exercised by general law. With the progressive evolution in the socio-legal framework, there is a need to evolve the law as well. Nature has divided the human body as the male body and the female body, which has a justification for continued development and growth of nature. Justice would be served if instead of turning our heads from the victim on the basis of gender, we should give equal opportunity by keeping aside gender of the victim and perpetrator.
Therefore, laws must be made in order to ensure that regardless of the sexual orientation of the victim or the accused, the perpetrators must be punished.
Reference
1.http://www.legalserviceindia.com/legal/article-1853-the-desideratum-of-gender-neutral-laws-in-india.html
2.7 SCC 740, (2001).
3.V.M. Arbat v. K.R. Sawai, 2 SCC 218, (1997).
4.https://timesofindia.indiatimes.com/city/chennai/Lacking-support-male-rape-victims-stay-silent/articleshow/18524668.cms
