GENDER NEUTRAL LAWS: A STEP TOWARDS MAKING THE COUNTRY FREE FROM GENDER BIAS

Gaurav Purohit

ABSTRACT

“Gender Bias is Biggest Threat to all Democratic Countries”. There are many Laws which do not provide Equal Remedies to both Genders that is both Male and Female and these practices will have a Negative Impact on the Thinking of the Society. We all know about the Principle of Equality and Natural Justice and there should not be any Favor to any Gender but there are some Laws which are against the concept of Equality and it is not us but the Law itself is sowing the seeds of Gender Inequality in This and Upcoming Generations. As Crime has no Gender so the Punishments For Committing Offences must be Same and should not favour any Particular Religion.

Some of the Laws Which is creating the gap between Male and Female are as Follows:

● Dowry Death and Cruelty Against Women

● Adultery

● Rape

● Modesty Of Women

● Imprisonment for Man up to 3 years For Sexual Harassment

● Maintenance of Boy up to 18 years where as Maintenance Of Girl Until Marriage

The Gender Bias is not good for the concept of Equality so it must be removed by Creating Gender Neutral Laws

INTRODUCTION

Now we have to Understand First What is Gender Inequality ?

So Gender is a function of Power Relationship between Men and Women where Man are Considered Superior to Women and gender is basically Socio Cultural term referred to socially defines roles and behavior assigned to Male and Female.

Gender Inequality shows us the Dark Side of the Society as it tells us about that Men and Women are not Equal and it gives negative Impact on any Developing Economy like India where still Women are not Equal as Men. These differences arises because of Psychology, Cultural Norms and Patriarchy System in which Men dominate, oppress and exploit women and it has validity in our religious beliefs as in Hindu, Muslim and many other Religions.

But it is not always the women who face the problem of discrimination or it is not always the women who have to fight against the wrong thinking but if we see the judicial aspect ,when the time comes to give the punishment for an offence it is always the man who faces the inequality, this point can be prove by some of the offences which we have mentioned above as all the crimes mostly make a man guilty before the actual decision as they are wrongly judged by the society and even if they are proven innocent by the court they are always considered as criminals.

For example:- if a wife filed a suit on her husband of adultery or marital rape firstly he will be considered as a criminal before any trial and secondly if he would be proven innocent he will always be seen as a criminal because of the wrong thinking of the people.

The Status of Women has been improved a lot as compared to from Ancient or Medieval Times but Women Empowerment or Improving the Status of Women doesn’t means that Men are Bad or For increasing Position of Women in the Society we have to Decrease Position of Men in the Society both Genders are Equal. We often take both as opposite Genders but According to me Both are Complementary. We Requires Efforts of Both to make any Country Powerful So no one is Above or Low and Everyone should be Treated Equal.

Gender Inequality is the Biggest Problem or Threat to Development of Society and Country and it is still present at the ground level ( Especially Rural Areas). Law generally states that There is No One Above The Law but they are not following their own words and they are not following The Principle of Equality. Gender Inequality doesn’t always amounts to the Discrimination to Women. Some Cases Of Discrimination with Men just don’t comes out in Public, Some Cases Related to Dowry and Rape are Fake and in the end they Conclude it as Source of Blackmailing and Raising Money used By Girls.

UNJUST STRUCTURE INDIAN PENAL CODE 1860

The Indian Penal Code in its form is the Important Criminal Code Of India which states all Cases and Punishments that a person committing any crime is liable to be charged and it covers any Indian Citizen or a person of Indian Origin.

Section 2 of the Code states down that Every Person will be at risk to discipline under this code and not in any case for each demonstration or exclusion in spite of the arrangements which he will be liable inside India. As it is Established and law doesn't separate among Criminals and each individual who has carried out an offense is at risk for Punishment under the Code. Anyway for the most part there isn't right outlook that all Violence is Male Generated makes the Gender Divide in Society and it gives a Shield to the Crimes Committed by Women as they perpetrate Crime for Same Reasons for Same Reasons that Men do.

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There are Some Provisions Under IPC which are Anti Male and generally Women Favoring they are:-

  1. Section 304B (Dowry Death) – Dowry Death mainly occurs      when the women being taunted and harassed sexually or mentally for money      and finally hanged to death within the four walls of her house. It is due      to the thinking of feminist that make us believe that every unnatural or      untimely death of Indian Married Women is Dowry Death.

According to the Section 304B:-

● If the Death of the women is caused by burns or bodily injury or any other abnormal circumstances.

● Such bodily injury or burns shall be caused within the 7 years of her marriage

● Further it is provided that she has been subjected to Cruelty or harassment by her husband, by her in laws, relatives in connection with demand for Dowry. Such husband, in laws or relatives shall be punished with an imprisonment for a term which shall not be less than 7 years but the punishment may extend to imprisonment for life.

This Provision could be seen as more of a women favoring because many of times the wrong cases are being filed regarding dowry death in which wife put wrong allegations on her husband and her in laws by grievously hurting herself and using it as a proof that she has been tortured. And in support the society believes that the husband and his relatives are the wrongdoer.

Section 498-A Cruelty Against Women- It is specified in Section 498-A that if Cruelty and harassment are shown to be occurred upon a married women by her husband or by any relative of her husband such shall be punished with an imprisonment which may extend to 3 years and shall also be liable for fine. This Section should be read along with Section 133-A of the Indian Evidence Act through which a presumption can be raised regarding Amendments of Suicide by the husband of a married women. The above mentioned sections are non baiable, non compoundable and cognizable offences in India. The Intentions behind these sections is to fastened guilt on the husband or in laws, thought they might be not guilty. It has become a custom that all the women have been driven to suicide due to Dowry Harassment. If in some cases the allegation under these sections is false there will be a trial and husband is considered guilty until proven innocent. This Misuse of the law has been termed as “ Legal Terrorism” by the Supreme Court.

As per the Report of National Crime Records Bureau in 2012 nearly 2 lakh people including 47,951 Women were Arrested on Un established Allegations of Dowry Offence surprisingly only 50% of the Accused were Convicted. Every Year it is noted that twice as married man compared to women commit suicide succumbing to verbal, emotional, economic and physical abuse by their wife’s and her in laws.

All such facts prove that law is being misused and the term Legal Terrorism is truly being practiced and with an evil motive sometimes women is trying to Defame her Husband and her in laws in the society. In a recent Judgment in the Case of Sushil Kumar Sharma vs Union of India the Honorable Supreme Court has observed that such provisions are intended to be used as a shield and not as assassin’s weapon.[1]

Section 497 Adultery

In this Section it is mentioned that whosoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be wife of other men without consent of that men such sexual intercourse is not amounting to the offence of rape but the person is guilty of Offence of Adultery and what's more, such individual will be rebuffed with detainment of either portrayal for a term which may stretch out to 5 years or fine

In the case Joseph Shine vs. Union Of India on 27 September,2018 the Honorable Supreme Court has struck down 158 years old Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional. The judgment of CJI Depak Mishra held that this Section violated a woman’s right to dignity resulting in infringement of Article 21(Right to life with personal dignity) of the Constitution of India. The court anyway explained that infidelity will be a ground for separation.

It was additionally expressed that if a demonstration of infidelity drives the abused companion to suicide the two-timing accomplice could be arraigned for abetment of suicide under Section 306 of the IPC.

Thus such judgments of the Supreme Court easily proves that such Laws are very women favoring as they always treat women as innocent and always treat man as a main accused for the offence of adultery, earlier it was a big question regarding this law that why always man be liable as the decision was always taken by seeing only the one side of the law that a man has influenced the women for entering into a sexual intercourse but further it was observed that even women can also indulge in the act of adultery by her own consent but even still the men will be liable. So the decision of all the judges which were part of the case again proved that everyone is equal in the eyes of law.

ANTI DOWRY LAWS

Many of the men rights activists claim that the Anti Dowry laws in India are many times being misused with the purpose of harassing and extort husbands. The biggest issue is increase in the suicide rate among married man. If we look in past the practice of giving dowry was first Criminalized and punishable in the year 1961 under the dowry prohibition act 1961 and later on under section 498 A of the Indian penal code which deals with cruelty to a wife and states that

Whoever being the husband or relative of the husband of a women, subjects that women to cruelty shall be punished with imprisonment up to three years and shall liable to pay fine

The section 113 B of the Indian Evidence Act 1879 says that if a married women commits suicide within seven years of marriage the court must assume that her husband and his family has abetted the suicide especially in the case if there was evidence of prior dowry demands.

Prior to the year 2014 the section 498A of the IPC allowed the police to arrest the person one who were mention in the complain without any warrant or Investigation, even such crime was non Bailable which means the chances of getting the bail are very less and husband usually suffer by loosing their job as they were in police custody. On 2nd of July 2014 the honorable supreme court of India stopped the automatic arrest under the section 498 A, instead the court directed the police to use section 41 of code of criminal procedure which contain a check list to decide whether an arrest in necessary or not it was further stated by the court that in all the arrest the magistrate must examine whether further detention was necessary or not .the police finds that of all the complain which were filled 9% were false and under the wrong law .

According to the safe India family foundation such laws does not follow conventional legal premises in which a person is innocent until proven guilty it was also pointed out that many of those who were arrested under this law are found to be women themselves which means the female relative of the husband the former justice of Delhi high court shiv Narayan Dhingra himself has admitted that such laws are used by the Women’s with a wrong motive of harassing their husband in laws. There are many non resident Indians groups that have demanded amendments in the anti dowry laws, we can take an example of Anandiya chatterji who was a California based it worker and used to run an online support group, he was accused under the anti dowry laws according to him the cases rook years to be solved which resulted the man loosing their jobs in abroad as they used to frequently travel to attent the court hearing thus harming their reputation without being proven guilty.

Need for gender neutrality

As there is an increase in the false complain being filed in the court with a mala fide motive their is an urgent need of gender neutral society. Their must be equality in the real terms not just in our thoughts and books. The freedom rights and liberty which are provided by birth must be provided to the girls as well as. Male and female must only be used as words, but in our sun conscious mind both should be same. As we can see in the corporate world the female employs earn less as compare to male employs despite of the fact that the female are more qualified than male employs, the main reason behind this is the practice of gender bias.the over all motive behind the general neutrality is to form a society in which both man and women enjoy the same opportunity, rights and obligation through out the life and is linked to sustainable development, educational attainment and political empowerment,

PROVISIONS FOR GENDER NEUTRALITY

Constitutional Provisions- Article 14 Equality Before Law: The Right to Equality is the first and Foremost which is guaranteed to all the Citizens, Equality forbids Inequality, Unfairness and Arbitrariness. The Article 14 provides equality before law and states that the State shall not deny to any of its Citizens Equality or the Equal Protection of Laws within the Territory of India. There are 2 main Expressions which are used in Article 14 “ Equality Before the Law and Equal Protection Of Laws The fundamental Principle of this Article is that All people and Things in comparatively Circumstances ought to be dealt with the same, both in benefits presented and liabilities forced. In the Landmark Case Sana Boina Satyanarayana Vs State of Andhra Pradesh A scheme for prevention of Crime against the Women was formulated, in the presence the prisoners were divided into 2 Categories first Prisoners were punished for the Crime Against Women and Second Prisoners are not guilty of Crime against Women. In Air India Vs Nargesh Meerza The Apex Court of the Country Struck down the Air lines Rules and Regulations on Retirement and Pregnancy while doing Jobs of an Air Hostess as Unconstitutional. The mentioned Rules were held to be Unreasonable as they were Violating Article 14 of Constitutional Law.

Article 39-A Equal Justice and Free Legal Aid- The Article says that the State shall Secure the Operation of Legal System promotes Justice, on the grounds of Equal Opportunity and shall provide free legal aid with the help of Suitable legislation with an aim to ensure that Opportunities for Securing Justice shall be provided to all the Citizens by reason of Economic and other Disabilities. The principle behind this Article are Fundamental and thus cast a Duty on the State to make sure that the operation of the legal system is successful in promoting Justice and further Mandates to provide legal Aid in all situations so that Everyone should get the Justice.

Article243-T Reservation of Seats- It states that Not less than one third seats ( which includes the number of seats which are reserved for the women which belong to SC and ST ) of the total number of seats must be filled by the Direct Elections in each and every Municipality must be Reserved for Women and such seats shall be allotted by the Rotation to different Constituencies in a Municipality

CONCLUSION

At Last We can Conclude that there are many Laws which are Favoring Women and it is always the Man who suffers because of such Laws. As such laws were bought with a motive protect the Women but it is observed that such laws are used as a tool to harass the Male Section of the Society. The main question arises that why only the male section of the society suffer from such laws.it proves that it is not always the society or acts that give rise to the discrimination but also there are many laws in our country which give rise to the discrimination. Even the male face the problem of harm of reputation as wrong allegations are made by the women with a motive of defamation and mentally harass. We should understand that as nowadays there is a talk of equal opportunity in the matter of justice so it must be enjoyed by both and the thinking that it is always the men who’s is wrong we should never assume before the final judgment that men has done wrong sometimes it is the different side of mirror which must also be seen by the society due to increasing gap between gender equality section 497 of the INDIAN PENAL CODE that is adultery was declared unconstitutional as it was depicting a picture in the eyes of the society showing men as a criminal or offender despite of the consent given by the women and with a view to promote gender equality in the society section 377 of IPC was struck down or declared void or unenforceable giving the equal status in the society to LGBQT + by legalizing the sexual relationship between the different spectrum of the society.

[1] 2002 (4) AWC 3034 SC, (2001) IILLJ 229 SC