This article is written by Puneet Kumar, a  law student at National Law university, Jodhpur, Rajasthan.

Abstract

Women in India have suffered a lot at the hands of the Patriarchal society. Since the 18th century things began to change when various women activist groups started working towards Women Enforcement. Till today there are various women empowerment groups that are still working with the same objective. It is a non-disputed fact that today women of India are equal to men. However, during all these years when various measures were taken to protect women from societal evils, one such measure taken was enforcement of section 375 of Indian Penal Code and the recent one was The Criminal Law (Amendment) Act, 2013. In this article’s beginning we will discuss the Societal evils that women have been facing since ancient times, then we will move further to section 375 and then we will discuss how power given to women under section 375 has caused threat to menfolk. In the end we will discuss what can we do that both men and women can be best served with Justice under section 375 of Indian Penal Code.

Introduction

The inequality between human beings of different sex has been one of the darkest sides of our society, but the inequality between them is not a modern society born dilemma, it was created long ago before our country’s Independence. The society of India always looked at men as Superior to women, thus leading to the formation of Patriarchal society in India.

The societal value of Women varied in respect to class, caste, region, etc. There was no uniform treatment derived by women all over the country. Taking as a whole in maximum parts of the country women were not treated equal to men in respect of property rights, respect, etc. The variation existed since ancient times. 

During the Mughal period in India many of these variations were brought to neutral as the Muslim Law promoted equality between men and women by providing right to property. But still there were various inequalities that abased women in society. As a result of this, traditions like the Purdah system emerged that were self-explanatory to the abased value of women in Indian society.

Taking the other dominant religion into account “Hindu Religion”. Various practices of this religion were self-explanatory for the abased life of women in India. Practices of this religion like Sati, Child Marriage were among those practices that deprived women of basic human rights as a result they were tied by the stereotypical thinking of the Patriarchal society.

Women were just treated as a specie for sexual pleasure which is a vindictive fact as according to medieval history of India kings, nobles, and high officers used to keep more than one wife and denied women any sort of liberty to speak or to give suggestion to them, women were also denied basic human right and there were no strict or uniform laws for punishment for harassment of women.

In the 18th Century things started to change as among many men who were overwhelmed with their superiority over women emerged a group of few who recognised the need of women empowerment and started to encourage the voice of women empowerment groups with the motive of improving the miserable life of women in our country.

During the rule of Britishers in India, people of India experienced many Socio-cultural changes that ultimately lead to an evolution of Indian culture in a positive manner, highly focusing and providing equality to women in India. In 1829, one of the biggest initiatives was taken by Lord William Bentinck when he passed an order to criminalise the abetment for sati under Regulation XVII. 

To protect women from harassment there were certain provisions made that protected them from social evils one of such provision was section 375 of Indian Penal Code, 1840 which was indeed formed to protect women from sexual harassment and to stop the rising graph of rapes in country. These sections were formed according to the miserable life of women so they were highly in favour for females protection, making men to have burden of proof on themselves, but in modern days when there has been a great shift in terms of equality between men and women, but there has been also a great misuse of this section for various means such as money, humiliation, vengeance, etc

Section 375

Section 375 of Indian Penal code was formed to protect women from rape. According to Indian Penal Code meaning of Rape under section 375— Rape. (see here) A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

First- Against her will. 

Secondly- Without her consent. 

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. 

Fourthly- 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

Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly- With or without her consent, when she is under eighteen years of age.

Seventhly- When she is unable to communicate consent. 

Explanation 1. —For the purposes of this section, “vagina” shall also include labia majora. 

Explanation 2. —Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1: A medical procedure or intervention shall not constitute rape.

Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 

Abuse of Power

Section 375 was initially developed to make India a well secured place and to form an egalitarian society in India, it was well sorted decision that in need of protecting women from sexual harassment there was a need of making an armor to their miserable and helpless societal value, but after 2012 Nirbhya Rape Case whole country was under a huge shock, it was felt that strict laws should be formulated to prevent sexual harassment of women. To fulfil this need of the hour in 2013 Criminal Law (Amendment) Act (see here) was passed, this carved out an exception to criminal laws which was that if a women accuses a man for sexual harassment or rape the burden of proof will lie on the man(accused), to prove that allegation made against him are malicious and that he is innocent and is being accused for false accusations. This was an exception because in rest of the criminal laws the burden of proof lies on the complainant. One of the famous sayings used with respect to section 375 is “A man is guilty until proven innocent and a woman is innocent until proven guilty”. 

The Laws that were made to empower women and to make them feel secure in patriarchal society soon transformed into the sword that slaughtered men’s dignity in society by false accusations or it can be said women started using the very law that was made to protect her as a weapon and that posed a threat to menfolk, in our modern society where women have been empowered to a great extent in comparison to our history but still there are Women Help Groups and other communities functioning to achieve the agenda of full fledged Women Empowerment as in some western countries, These groups and public sympathy These groups and public sympathy have been used maliciously by women to achieve their deceptive objectives. have been used maliciously by women to achieve their deceptive objectives. Section 375 has expressly used two terms will and consent.

With respect to section 375 will means to have desire to indulge in sexual intercourse while consent is agreeing to indulge in sexual intercourse. This provision has been maliciously used by women in terms of consent in contemporary world women falsely accuse man for doing sexual intercourse with her without her consent which transfers the burden of proof on man making woman to sit back and enjoy the show such activity is done by woman with malice of taking revenge, money or to humiliate man in the society. While such cases have the most important component to discuss and that is whether sexual intercourse happened or not and if it does happen was the consent given. The problem that arose in our contemporary world is that women either have sexual intercourse by giving verbal consent and later deny it or they don’t have any sexual intercourse and falsely accuse men that they had it without her consent. In both the cases man has a burden of proof on him and has to prove his innocence. 

According to an article published in Times of India (see here) in every 4 cases of rape only 1 is convicted that produces a high belief that there is a high probability of those not proven guilty after complete judicial procedure are accused of rape are innocent and were falsely accused. Conviction rate of India is 32% this is self explanatory to the fact that there are a number of false complaints registered in relation to rape in India. But the sad reality of our society is that we only lament for women when she accuses a man irrespective of having any accurate knowledge about the incidence, the media is considered as the fourth pillar of Democracy but even media neither visual nor textual prefer speaking about men’s innocence but rather prefer to go along with other feminist or women empowerment group develop an aura of abasing that accused man in society or it can be said that a man is often declared to be guilty as soon as the allegations against him are heard by the society. 

In 2014, The Delhi Commission of Women published a report (see here) which highlighted the fact that among all the rape cases filed between April 2013 to July 2014, 53.2% of them turned out to be false. This statistic was cited gleefully by men’s rights activists and the like to decry that women speaking out about rape or sexual violence were, in all probability, lying or taking revenge on men. According to the commission in most of the commission the complainant turned hostile and, in the end, it turned out that the only reason to file such a complaint was to take revenge or even the score. However, such cases also served the means to blackmail innocent men for property, money or any other desired wish of women.

But this was not the end, the report further stated that in 2012 the acquittal rate was 45% but in 2013 it turned to 76% this was a direct increase of 22% in a single year. According to NDTV news (see here) there are a number of cases filed to achieve various deceptive motives like extortion for money or property or for taking revenge. Even after having such a high acquittal rate in India in terms of rape cases, the number rape cases filed every year is increasing at a sharp rate. Shamina Shafiq, of the National Commission of Women, when asked about the report said (see here) “It is sad that people are misusing the rape laws to settle scores, while there are so many women who have nowhere to turn to in genuine cases. How will they gather the guts if this turns out to be the trend? A victim’s family will also dissuade her from complaining.” This statement and the above-mentioned facts and figures are finest evidence for any common person to judge that the shield given to women under section 375 has now turned into a sword which is slaughtering innocent men’s reputation in the society. 

Threat to Menfolk

The rise of false cases was experienced soon after The Criminal Law (Amendment) Act, 2013 widened the scope of section 375. According to this a mere statement of the victim can bring a man behind bars. The police authorities have to follow the protocol established by law, Police has to take the man in Custody for protective measures of the woman, all the investigation procedure takes place later. This position of power provided to women has laid to a number of false accusations. 

One of the popular cases reported in 2013 which took coverage among all news channel was “Bathinda Rape Case” according to Hindustan Times the details of case were published as (see here) “A Moga woman’s story of her kidnapping from Chandigarh and dumping here after gangrape in a moving car has turned out to false.

She posed as victim to frame her boyfriend’s wife who had got her into prison on the accusation of attempted murder by poking with HIV-infected needles. She was out on bail when she made up the story.

Along with suspect Gurveer Kaur (24), the police have also arrested Rohtash Kumar, who claimed to have brought the woman to hospital in her unconscious state. Suspects Gurveer Kaur, Rohtash, Ramesh, and Sunil Kumar are charged under Sections 420 (cheating), 195 (submitting false evidence to get someone imprisoned for life), 211 (false charge with intent to injure) and 120-B (criminal conspiracy) of the Indian Penal Code (IPC).

The plan also involved consensual sex between Gurveer Kaur and Rohtash Kumar to make it easy to prove rape.

A year ago, Gurveer and her boyfriend, Sunil Kumar, were charged with torturing Sunil’s wife to the extent of sometimes even poking her with unsterilised needles, which gave her HIV-AIDS. The target became blind because of the repeated assault and on Friday, doctors at the Post Graduate Institute of Medical Education and Research (PGIMER) in Chandigarh operated on her eyes.

In January last year, after the victim’s father took the matter to the Punjab director general of police, Gurveer and Sunil were charged with attempt to murder. In Abohar jail, they became friends with Rohtash and Ramesh and made them partners in the conspiracy.

‘All four suspects, including Sunil Kumar who is in jail, now are suspects in the fake gangrape case,’ inspector general of police Nirmal Singh Dhillon said here on Monday. ‘A hunt is on for Ramesh. Gurveer Kaur and Rohtash had consensual sex to prove rape and put her enemies behind bars’.”

Recently there was a case filed against a 75-year-old man for raping a woman highly below her age, (see here) the 75-year-old man who had already lost his wife and is so old that he can barely walk was accused of raping a young woman. He had to suffer imprisonment for this act for 6 months after which he got out on bail but still had to suffer abasement at the hands of his children, friends and relative for being accused of committing rape. But he finally got justice when the court came to know the reality after the women who accused him agreed at her testimony that it was done for money and property. Although he got justice at the end but looking at this whole incident one can do nothing rather then to lament on what that old man went through during his 6 months in imprisonment and the abasement, he suffered at the hands of the society for an act which he never committed.

BBC news also published an article (see here) about a real estate agent named Gupta who was 44 years old and was accused of rape by a women who he went out to show some property turned out that women was coerced by an employee of the real estate agent who he caught embezzling money. Although he got out of the case after being proven innocent but it took 8 months. And during those eight months Gupta lost every shred of dignity he had in the society; his family suffered too.

The victim of false rape accusation is as worse as victim of rape. No one can imagine the shock, trauma, ridicule and humiliation one suffers after he is falsely accused of rape. Not only the man but his family or his close ones also suffer various consequences, isolation & ridicule being few of them. His future gets shattered and the humiliation and disgrace faced by the society is enough to break anyone so hard that they couldn’t even think of ever living the way as they have been before. 

These above-mentioned cases are just a few examples of how miserably men are suffering due to a non gender neutral law. This scenario may make everyone across the Globe wonder what is really happening in the world’s biggest democracy ‘India’. These false rape cases filed are not only a threat to menfolk but they also serve as a parasite to our country as it abases the reputation of our country across the globe by increasing India’s Crime Rate.

Conclusion and Suggestion

The rights given to women under section 375 were provided for protection of women so that they can feel protected and could live with freedom and will be treated the same as men and hence it would have developed an egalitarian society in India, but things went wrong after The Criminal (Amendment), Act of 2013 was passed which provided excessive powers in the hand of women and then the society faced a huge change. The act that was made with the objective of protecting women turned into a threat for menfolk. Since then the number of false accusations has been experiencing a sharp rise. Section 375 of Indian Penal Code and The Criminal (Amendment), Act of 2013 is not only about justice anymore; it is also about posing a threat to menfolk.

The makers of the section 375 and The Criminal (Amendment), Act of 2013 had only one-sided vision in respect to the section 375, they only thought about women safety but didn’t build up any remedy for safeguarding innocent men in the society. So, the debate usually arises of what can we do to safeguard innocent people from society. Although it cannot be said that the provision (section 375) should be made gender neutral as it will take away the last shred of justice that this section provides, as it will act as a hurdle for women who have to file for a genuine rape case. The question then arises: What can be done? In a situation like this, the legislature and judiciary need to work together to make a proper balance between the men and women by ensuring they get served properly by the virtue of justice.

The model used for providing justice in rape cases is quite old. Living in a dynamic society, laws should be formed in such a way that it suits the need of the hour and that can be more efficient in upcoming times. 

Well in my opinion to ensure that the virtue of justice stands, the judicial and legislature needs to focus on something that I call “Perjury in rape case” policy. This policy should be formulated in such a way that it can provide justice to the victim of false accusation of rape. The punishment(imprisonment) should be long enough that women would get a sense of what they will face if they make false accusations against any innocent men of the society, along with which they should be ordered to compensate damages suffered by men during the trial which may include court fees, litigation fees and other liquidated damages. 

The damages provided and women suffering punishment(imprisonment) will ensure that the men can get back the dignity lost by them during trial as of when women will suffer imprisonment it will send out the loud and clear message that the accused was innocent, the truth will fly high and will help man recover easily from the trauma faced by him during the trial. However, it may not be acceptable for all but still this model will serve in the best interest of “Justice” and will be more efficient in today’s society then the model already in use.

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