Open Access Research Article
THE MISUSE OF LAW BY WOMEN IN INDIA: CONSTITUTIONALITY OF GENDER BIAS
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Article Details
THE MISUSE OF LAW BY WOMEN IN INDIA:
CONSTITUTIONALITY OF GENDER BIAS
AUTHORED BY - BIBHUTI BHATTA & V
VISHAL
ABSTRACT:
Gender bias and discrimination persist as significant challenges in
India, permeating societal structures and legal frameworks. While efforts to
promote gender equality have been made, ingrained cultural norms and
patriarchal attitudes continue to undermine progress. This paper examines
instances where legal provisions intended to protect women's rights have been
manipulated to their advantage, often at the expense of men's rights. Focusing
on cases of domestic violence and dowry-related offenses, the paper explores
the implications of such misuse on the legal system and societal dynamics.
Drawing on constitutional provisions, legal precedents, and scholarly analysis,
the paper evaluates the constitutionality of gender bias inherent in the misuse
of laws by women and assesses the adequacy of existing legal safeguards. The central research question guiding this study
is:
How does the misuse of legal provisions by women in
India impact the constitutional principles of gender equality and the integrity
of the legal system?
Additionally, the
paper addresses the gap in laws regarding the rape of men, highlighting the
absence of gender-neutral legislation and the challenges faced by male
survivors of sexual assault. Through an analysis of societal attitudes, legal
frameworks, and international perspectives, the paper underscores the need for
comprehensive reforms to address gender bias and promote gender equality in
India's legal system. The research method
employed in this study primarily relies on the doctrinal approach, focusing on
the analysis of legal principles, statutes, and judicial interpretations
relevant to the misuse of legal provisions by women in India. Through a doctrinal
examination, the study scrutinizes constitutional provisions, statutes such as the
Indian Penal Code (IPC), and case law to evaluate the constitutionality of
gender bias inherent in the misuse of laws. By delving into legal doctrines and
precedents, the research assesses the adequacy of existing legal safeguards and
identifies potential inconsistencies or gaps in the legal framework concerning
gender equality. Ultimately, the paper
advocates for a balanced approach that protects the rights of both women and
men, fostering a more just and equitable society for all individuals.
Keywords: Gender, Sexual assault, societal
attitudes, Misuse
1. INTRODUCTION
Gender bias
remains a pervasive issue worldwide, permeating through societal structures and
legal systems alike. Despite global efforts towards fostering gender equality,
many countries, including India, continue to grapple with deeply confirmed
discriminatory practices. In India, where cultural norms and traditional
beliefs often intersect with legal frameworks, the manifestations of gender
bias are particularly pronounced. While women are frequently victims of gender
discrimination, it is crucial to acknowledge that the issue is multifaceted,
and men also face challenges arising from societal expectations and legal
provisions.
2. GENDER BIAS AND DISCRIMINATION
Gender bias refers to the unequal treatment or
discrimination against individuals based on their gender. It manifests in
various forms, such as unequal opportunities, stereotyping, and societal
expectations, often favoring one gender over the other and perpetuating
systemic inequalities.
In India, gender discrimination diffuses through
various aspects of women's lives, spanning from familial structures to societal
institutions. Despite constitutional guarantees of equality, cultural norms and
patriarchal attitudes perpetuate gender bias across multiple spheres, including
marriage, education, and employment. Women often encounter systemic barriers
that hinder their access to opportunities and limit their agency.
3. INSTANCES OF MISUSE
3.1. DOMESTIC VIOLENCE
Domestic violence encompasses a pattern of abusive
behavior in intimate relationships to gain power and control over a partner. It
includes physical, sexual, emotional, economic, or psychological harm inflicted
by a current or former partner. Domestic violence can result in physical
injuries, emotional trauma, and long-term psychological effects on victims.
Domestic violence cases often witness the misuse of
legal provisions, where women may file false complaints against their husbands
or in-laws to gain an advantage in divorce or property disputes. Such actions
not only violate the spirit of the law but also deny men their due rights.
Understanding personal motivations is crucial not only for psychology and
sociology but also for various aspects of our daily lives, including
relationships, career choices, and personal development. Women may misuse laws
due to personal motives such as revenge, financial gain, or to gain an upper
hand in legal disputes, including family or property matters.
In the case of Dr. N.G. Dastane v. S Dastane (1975
SCR 967), the Supreme Court held that although it is commonly assumed that the
stronger party commits physical cruelty towards the weaker party, such as a
husband toward his wife, both women and men are capable of causing mental
cruelty towards their partners. This highlights the need to recognize that
domestic violence is not solely perpetrated by one gender against the other.
In Rajesh Sharma & others v. State of
Bihar (2017) 3 SCC 821, the court laid down certain directions to
prevent the misuse of Section 498-A of the Indian Penal Code (IPC). The court
directed the establishment of a Family Welfare Committee in each district by
the District Legal Services Authority to investigate cases of domestic violence
reported under Section 498-A of the IPC for a month before making any arrest.
The Committee comprises para-legal volunteers, social workers, and retired
persons who are given basic training for this task. This intervention aims to
prevent wrongful arrests and provide a fair and thorough investigation process
before legal action is taken, addressing concerns about misuse of the law while
ensuring justice for genuine victims of domestic violence.
3.2. DOWRY-RELATED OFFENSES
Dowry refers to the transfer of money or assets after marriage
from the bride's family to the groom's or his. Dowry-related offenses entail acts of harassment, cruelty,
or violence inflicted upon the bride by her husband or in-laws for inadequate
dowry payments. These offenses are criminalized in many countries, including India,
where stringent laws aim to protect women from dowry-related abuse and ensure
the equitable treatment of brides within marital relationships.
Dowry-related offenses are legally treated as criminal acts in India,
with stringent provisions in place to address such abuses. However, there have
been instances where women have misused these legal provisions by falsely
accusing their spouses or in-laws of dowry harassment. Such misuse not only
undermines the integrity of the legal framework designed to protect women but
also poses significant challenges from a legal perspective. False accusations
of dowry harassment can lead to wrongful convictions, tarnishing the reputation
of the accused and perpetuating injustices within the legal system. Moreover,
this misuse erodes public trust in the efficacy of anti-dowry legislation,
making it imperative for legal authorities to navigate these complexities effectively.
In
India, dowry-related violence remains a pervasive issue, with approximately 21
women losing their lives every day due to this cultural practice. Despite
legislative efforts dating back to 1961, it is Section 498A of the Indian Penal
Code (IPC) enacted in 1983 that stands as the primary statute to address dowry
harassment. However, this law, designed as a reactionary measure, has proven
highly controversial and ineffective in combating dowry-related crimes against
women. The law criminalizes cruelty toward wives, making dowry harassment a
cognizable, non-bailable, and non-compoundable offense. Yet, its implementation
has been fraught with challenges, including widespread misuse and wrongful
incarceration of innocent individuals.
An
alarming number of unlawful arrests have resulted from the misuse of Section
498A, putting innocent women and even men in the criminal court system. The law's flawed premise, where the victim's testimony is
considered sufficient evidence for arrest, has resulted in cases where
individuals with minimal or no involvement in dowry harassment have faced life
imprisonment. For instance, individuals remotely connected to the victim, such
as bedridden grandparents or sisters living abroad, have been unjustly
incarcerated under this law. Furthermore, the law does not distinguish
between different levels of involvement or take into account the nature of the
relationship between the victim and the accused, which results in unfair
sentencing and keeps inequalities in the legal system alive.
Efforts
to address the misuse of Section 498A have been met with mixed reactions. While
attempts such as introducing a nine-point checklist before arrests were made by
the Supreme Court, concerns were raised regarding the neglect of genuine
victims' experiences. Subsequent mandates, such as the formation of family
welfare committees to investigate dowry harassment cases before arrest, faced
criticism for potentially legitimizing stereotypes about women fabricating
violence allegations. The withdrawal of these directives in 2017 highlighted
the ongoing struggle to find a balance between protecting victims and
preventing misuse of the law. Moving forward, amendments to Section 498A must
prioritize protecting the rights of both victims and accused individuals.
Proposals such as conducting investigations before arrests and considering the
dynamics of relationships within families are crucial steps toward addressing
the flaws in the current legislation while ensuring justice for all parties
involved.
4. CONSTITUTIONAL FRAMEWORK
While
the Indian Constitution and legal framework seemingly uphold principles of
gender equality, there exist visible instances where the legal apparatus may
inadvertently perpetuate discriminatory practices against men. Despite the
explicit provisions ensuring equal rights and opportunities for all citizens,
men encounter systemic biases rooted in societal constructions of masculinity.
The conventional societal norms dictate a rigid set of expectations for men,
characterized by traits such as toughness, dominance, and emotional restraint,
thereby marginalizing individuals who deviate from these norms. Consequently,
this imposition of stereotypical gender roles engenders an environment where
men who do not conform to these expectations face social ostracism and
discriminatory treatment.
Furthermore,
within the context of legal responses to gender-based issues such as domestic
violence and sexual harassment, there exists a systemic inclination to
categorize men as default perpetrators. The prevalent association of
masculinity with traits like aggression and assertiveness often leads to the
presumption of culpability for men accused of such offenses, irrespective of
individual circumstances. This predisposition towards presumptive guilt based
on gender stereotypes can manifest within the criminal justice system,
resulting in men being unfairly targeted and subjected to prejudicial treatment
in legal proceedings.
Addressing
these legal and societal challenges necessitates a multifaceted approach that
encompasses both legal reforms and cultural shifts. Efforts to challenge
entrenched masculine norms and stereotypes require strategic legal
interventions aimed at fostering a more gender-neutral legal framework. These
reforms should prioritize equitable treatment for all individuals, regardless
of gender, and ensure that legal processes are devoid of biases and
presumptions based on gender roles. Moreover, fostering dialogue and promoting
awareness regarding the diverse manifestations of gender identity and
expression are imperative steps towards fostering a legal environment that is
truly inclusive and equitable for all genders.
While
the Indian Constitution espouses principles of gender equality, confronting
discriminatory practices against men within the legal sphere mandates a
concerted effort to challenge entrenched gender norms and biases. India
could get towards a legal system that protects the rights and dignity of every
person, regardless of gender, by passing laws that strengthen justice and
impartiality and encouraging public discourse targeted at destroying harmful
preconceptions.
5. ADDRESSING THE GAP: LAWS REGARDING RAPE OF MEN
India’s legal framework predominantly centers
around protecting women from sexual violence. Provisions such as the Indian
Penal Code (IPC) Section 375 define rape and related offenses, emphasizing the
protection of female victims. However, this focus leaves male victims with
limited legal avenues.
The Indian
Penal Code (IPC) defines and describes the crime of rape in Section 375.
According to this, a male is considered to have committed rape if he engages in
sexual conduct with a woman in any of the following situations:
1.
Against her will.
2.
Without her consent.
3.
With her consent, when her consent has been
obtained by putting her in fear of death or of hurt.
4.
With her consent, when the man knows that he is not
her husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
5.
The provision also specifies that sexual
intercourse includes penetration of any bodily orifice, and that consent given
under certain circumstances, such as intoxication or mental incapacity, is not
valid.
According
to Section 375, rape carries a sentence of at least seven years in jail, with
the possibility of a life sentence, as well as a fine. In other cases, such as
when the victim is a minor or when the rape causes death or significant harm,
the sentence may be increased.
Rape is considered to have occurred under certain
circumstances, such as when it is done against the woman's will or without her
consent. Consent means the woman clearly agrees to participate in the sexual
activity. However, if a woman does not physically resist, it does not mean she
consents. There are
also exceptions to this legislation, such as the fact that sexual actions
performed on one's own spouse—as long as she is not under the age of fifteen—do
not qualify as rape, nor do medical procedures.
The legal definition of rape in India, as outlined
in Section 375 of the Indian Penal Code, is not gender-neutral and perpetuates
discrimination against male rape survivors. By explicitly framing rape as an
act committed by a man against a woman, the law fails to acknowledge that men
can also be victims of sexual violence. This omission denies male survivors the
legal recognition and protection they deserve, contributing to the
underreporting and invisibility of male rape cases.
Societal attitudes play a crucial role. The
prevailing perception is that men cannot be victims of sexual assault,
especially by women. This stereotype perpetuates the notion that men are always
perpetrators and rarely victims. Consequently, male survivors often hesitate to
report incidents due to fear of ridicule or disbelief.
“Women cannot rape men.” “I have doubts whether a
woman can commit rape; the reason is that a man has to be aroused sexually to
be able to have sex with a woman. If a woman tells a man that he must have sex
with her, it won’t work because the man will be so frightened and disorientated
that he won’t really be able to do it. Under that circumstance, the man won’t
be able to be in the proper physical mood to be able to have sex with the
woman.” (Madukwe 2013) - Vanguard, a
Nigerian newspaper
"To presume that women can rape men is
rather outrageous. While women can sexually harass men, they can't sexually
assault them. There have been no such cases anywhere." (Divya A 2010)
- Flavia Agnes in The Times of India
“It is physically impossible for a woman to rape
a man. Arousal implies consent.” - Dr. Anand Kumar, Department of
Reproductive Biology, AIIMS, in an interview.
It seems
hard to continue the case for gender-neutral rape legislation from the onset
when national media, feminists, attorneys, and even doctors assert that a woman
raping a male is not only an oddity but nearly unheard of.
There are
five main objections to gender-neutral rape laws in India raised by rape laws
worldwide: Men cannot be raped by women 2. Men are not raped by women 3. The
effects of rape are not the same for men. 4. Power is a factor in rape. 5. Laws
against gender-neutral rape will have unexpected repercussions.
Rape, a crime commonly associated with female
victims, obscures the silent struggle of male survivors in society. The prevalent
myths and stereotypes deny the vulnerability of men to sexual assault,
perpetuating silence and hindering justice. In our society's narrative, male
strength equates to invulnerability, dismissing the possibility of male
victimization. Additionally, the misconception that men always desire sex
oversimplifies complex dynamics of consent, coercion, and trauma, further
silencing survivors. This societal silence is reinforced by the false belief
that men are less susceptible to trauma, deterring many from seeking help or
justice due to fear of stigma. Furthermore, India's legal framework lacks
gender neutrality, leaving male survivors without adequate legal recourse,
while international progress in recognizing male rape victims remains limited.
Challenging these stereotypes requires concerted efforts in education,
advocacy, and legal reform.
The National Intimate Partner and Sexual Violence
Survey (2010) is a telephone survey that measures the magnitude of sexual and
other violence among adult men and women in the United States. It finds that 1
in 71 men (1.4%) have been raped once in their lifetime. It should be mentioned
that the corresponding figure for women is 1 in 5 (20%). While the figure for
women is much higher, the figure for men is by no means negligible (It is an
estimated 1.5 million men). The figure for men includes oral or anal
penetration by a male using his penis. It also includes anal penetration by a
male or female using their fingers or an object.
Notably,
compared to 12% of female victims, 28% of male rape victims suffered assault
when they were 10 years old or younger.
“The consequences of rape for a woman are
far-reaching. She has to battle social stigma, social mindset. While fixing
marriages, nobody asks a man if he is a virgin.” (TNN 2012) - Flavia Agnes.
This
perspective is related to the notions that men do not mind having
non-consensual sex and that, in the end, it is of no significance if men are
raped because no one within the community is going to judge them. On the other
hand, studies reveal that men do mind. NISVS (2010) finds higher prevalence of frequent headaches, chronic
pain, difficulty sleeping, activity limitations, and poor perception of their
own physical and mental health in men who have been victims of rape, stalking,
or physical violence by an intimate partner. Masters (1986) finds that men who
have been raped by women face sexual dysfunction and disorder and are unable to
respond physically to a female partner of choice even two years after the
attack. The men had lost their “sense of personal dignity and confidence in
[their] masculinity.”
Carpenter (2009, citing Mezey, 1987) finds that the
“male coping strategy characterized by denial and control renders them more
prone to later psychiatric problems and reduces the likelihood of seeking
help.” Perhaps rape does not affect men and women in identical ways; it does,
however, affect men adversely.
The Bharatiya Nyaya Sanhita (BNS) Bill of 2023,
designed to replace the Indian Penal Code (IPC), has ignited controversy by
omitting Section 377, which previously criminalized non-consensual sex among
adults of all genders and orientations. This omission poses significant
concerns regarding the absence of legal protection against sexual violence for
men, transgender individuals, and animals. Without a specific provision
addressing sexual offenses against these groups, the law creates a dangerous
gap in safeguarding their rights. While the Protection of Children from Sexual
Offences (POCSO) Act offers some protection, it does not extend to adult males
and transgender individuals. Therefore, there is an urgent need for the BNS
Bill to introduce gender-neutral provisions that encompass all individuals
facing sexual violence, ensuring equitable legal protection irrespective of gender
identity or orientation. Moreover, addressing patriarchal norms that perpetuate
differential treatment based on gender is essential for fostering a more
inclusive and just society.
6. CONCLUSION
The
examination of gender bias and the misuse of legal provisions in India reveals
complex challenges that demand nuanced solutions. While legal frameworks exist
to protect women's rights, instances of misuse highlight the need for a
balanced approach that safeguards the rights of all individuals, regardless of
gender. Addressing entrenched societal norms and stereotypes is essential to
fostering a legal environment that is truly inclusive and equitable. Moreover,
efforts to bridge gaps in legislation, such as the absence of gender-neutral
laws regarding rape, underscore the importance of comprehensive reforms. By
promoting awareness, advocating for legal changes, and challenging
discriminatory practices, India can move towards a more just and equitable
society for all its citizens.
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Article Information
THE MISUSE OF LAW BY WOMEN IN INDIA: CONSTITUTIONALITY OF GENDER BIAS
Authors: BIBHUTI BHATTA, V VISHAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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