THE GENDER ADVANTAGE: WOMEN WHO MISUSE IT

AND MEN WHO BEARS IT

Sabarinath R S1

“When injustice becomes law, resistance becomes duty.”

― Thomas Jefferson2

Abstract
We have been dreaming about equality for many decades now. The news has practically
saturated the print and electronic media with it. Everyone seems to be talking about equality,
how important it is for a healthy society, and how to achieve it by different means and methods.
Gender Inequality is one of the most visible forms of inequality around the world. As a result
of a strong feminist movement that started in the middle of the twentieth century, bringing to
light the gross disparities and atrocities that women face on a daily basis, there was a need to
change the legislation so that women could be treated equal to men. The legislations we began
with were reasonably, maybe entirely valid for the times, but the dawn of time has placed men
in such a gullible role that they are victimised by the so-called women's empowerment
legislations. Far less has been said about how we have turned into a penal state by passing
almost every draconian law imaginable in the name of combating crimes against women,
condoning illegal arrests of ordinary people, and imprisoning them in deplorable conditions.3

The time has arrived for males to be seen as part of the solution rather than the constant
problem. Some laws and regulations are not only prejudiced towards women, but they also
need to be amended as quickly as possible. In India, being born a male is a crime. It is also a
criminal offence to marry an Indian girl. And it is all due to laws that discriminate against men
in the name of protecting women. Women's rights are aimed at protecting them, but these days,
women are using them as a shield to make the victim appear to be the offender.

1
Fourth Semester, Unitary LLB student of Government Law College, Thiruvananthapuram
2
An American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the
third president of the United States from 1801 to 1809.
3
Gupta, A. (2022, February 23). [Legal Article] Gender Biased Laws in India by Avinash Singh & Shatakshi
Srivastava. https://www.mylawman.co.in/2021/06/legal-article-gender-biased-laws-in.html

1
Introduction

A few years ago, a young man committed suicide. This incident happened a week after he was
proved innocent in charge of domestic violence. When he was arrested there were no enough
proofs but to get a women justice and to establish that the women-centric laws are for the
protection of the females and to prove that men are the ones who are perpetrators in such
crimes, he was arrested. Later on, he was proved innocent. But after returning to his normal
routine, things were not the same for him. He lost his job, people around him treated him as a
criminal and made sarcastic remarks against him. He was unable to bear this and gave up on
his life. The simple question is whether the laws made to protect women possess the right to
kill an innocent person if not implemented properly?4

In India, women often misuse laws meant to protect them. For example, many women in India
have been known to misuse the Section 498A of the Indian Penal Code (IPC)5, which is meant
to protect them from domestic violence. In particular, women may file false complaints of
domestic violence against their husbands and in-laws to gain leverage in divorce proceedings
or to extort money. Similarly, the Protection of Women from Domestic Violence Act (PWDVA)
of 2005 may be misused by women to gain an unfair advantage in divorce proceedings or to
harass their husbands and in-laws. Finally, the Indian Penal Code (IPC) Section 354A6, which
prohibits sexual harassment, may be misused to falsely accuse a husband of harassing his wife.
It is important to note that these laws are meant to protect women from abuse and harassment.

Therefore, it is important that the misuse of these laws is discouraged and those found in the
Protection of Women from Domestic Violence Act (2005) by women. When filing false
complaints, women may also misuse the Dowry Prohibition Act of 1986, which is meant to
protect them from dowry-related harassment. Women may falsely accuse their husbands and
in-laws of demanding dowry in order to gain an upper hand in divorce proceedings or to extort

4
Garg, R. (2020, December 24). Women-centric laws: consequences faced by males - iPleaders. iPleaders.
https://blog.ipleaders.in/women-centric-laws-consequences-faced-males/
5
Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to fine.
6
(1) A man committing any of the following acts—1. physical contact and advances involving unwelcome and
explicit sexual overtures; or 2. a demand or request for sexual favours; or 2. showing pornography against the
will of a woman; or 3. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall
be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with
both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine, or with both

2
money. The Act is meant to protect women from physical, emotional and sexual abuse by their
partners. However, some women use it to harass their partners, by filing false complaints of
domestic violence against. them. The punishment for such misuse of law depends on the
severity of the offence. For instance, if false complaints are repeatedly filed, or if an individual
is found guilty of deliberately filing false complaints, then the person may be punished with
imprisonment of up to one year, or a fine of up to Rs.20,000, or both. In cases where the false
complaint is made with malicious intent, a jail term of up to two years and a fine of up to
Rs.50,000 may be imposed.

Discriminatory practice refers to any action or behaviour that unfairly differentiates or

disadvantages a person or group based on their race, gender, sexuality, age, religion, disability,
or any other characteristic. Discriminatory practices can take many forms, including exclusion
from opportunities, unequal treatment, harassment, and stereotyping. Discriminatory practices
can occur in many areas of life, including education, employment, housing, healthcare, and
legal systems. It is important to address discriminatory practices and create systems and
policies that promote equality and equity for all individuals, regardless of their background or
identity. Legal professionals can play a crucial role in challenging and eliminating
discriminatory practices in the legal system and society at large.

There are several gender biased laws in India that have been a subject of debate and criticism.
One such law is the Hindu Succession Act, 1956, which excluded daughters from inheriting
ancestral property equally with sons until the amendment in 2005. The Muslim Personal Law7
in India, which governs matters such as marriage, divorce, and inheritance for Muslims, has
also been criticized for its gender biases towards women. Under the law, Muslim women do
not have the same rights as men in matters of inheritance, divorce, and child custody.

The Harvard Bluebook 20th edition does not explicitly endorse or advocate for gender biased
laws. In fact, the guide recommends using gender-neutral language in legal writing and
encourages writers to avoid using language that reinforces gender stereotypes or biases.
However, it is possible that certain laws or legal systems may be inherently biased or
discriminatory towards certain genders, and the guide may be used to cite and analyse such
laws. In such cases, it is important for legal professionals to critically examine and challenge
any gender biases or discriminatory practices in the law. The guide includes rules for formatting
citations, abbreviations, and other important details necessary in legal writing. It is widely used

7
Muslim Personal Law (Shariat) Application Act, 1937.

3
by law students, lawyers, judges, and other legal professionals in the United States and around
the world.

How is gender defined?

Gender is defined as “the state of being male or female (usually used in reference to social and
cultural differences rather than biological differences).” As a result, the term "gender" is a
socio-cultural connotation or a social creation of female and male identity in and of itself. It
includes how those distinctions, actual or perceived, have been valued, used, and depend on to
distinguish women and men and assign roles and expectations to them. The term "sex" refers
to the over-generalizations and assumptions that result from it, and culture tends to adopt
gender-based "characteristics" rather than sex-based ones. Gender categorization is based on
assumptions and generalisations. Gender-indicating features are so obvious that the terms
gender-based differences and sex-based differences are often interchanged. Gender-based
norms have now become deeply embedded in society, and society now relies on these norms
to produce Masculine and Feminine characteristics that must be present in both men and
women. All of these inequalities have now taken the form of ‘gender discrimination,' which is
quite visible in India. Due to the patriarchal society, gender-based biases and stereotypes are
“generally” towards the female portion of the Indian population.

As a result, the need for a ‘Gender Neutral’ society has been recognised in this decade. 'Gender
Neutrality,' according to the Oxford Dictionary, is an adjective that is appropriate for, applicable
to, or common to both male and female genders. It refers to the principle that laws, language,
and other social structures should not differentiate roles based on people's sex or gender, and
that men and women should be treated equally and without discrimination legally. We aspire
to live in a society where equality is defined in its true sense, and not at the expense of either
gender.

The Gender Biased Laws

The gender biased laws in India include the provision of adultery being a criminal offense,
which only criminalizes the act of a man having sexual relations with another man's wife,
leaving out the woman from any such legal action. The Indian Penal Code also has provisions
that put the burden of proof on the victim in cases of rape and sexual harassment, which can
make it challenging for women to seek justice in such cases.

4
The Indian legal system has taken steps towards addressing gender biases and discrimination,
including implementing the Domestic Violence Act, 2005, and the Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The Indian Penal
Code (IPC) has several provisions that have been criticized for their gender biases. One such
provision is Section 497, which criminalizes adultery but only punishes men for having sexual
relations with another man's wife. This provision is widely seen as discriminatory towards
women, as it treats them as the property of their husbands and denies them agency over their
own sexuality. Another provision that has been criticized for gender bias is Section 375 of the
IPC, which defines rape. The provision has been criticized for its narrow definition of rape,
which only recognizes nonconsensual penile-vaginal penetration as rape. This definition
excludes other forms of sexual assault and fails to recognize that men can also be victims of
rape. Section 155(4) of the IPC also places the burden of proof on the victim in cases of rape
and sexual assault. This provision can make it challenging for victims to seek justice, as they
are often required to prove that they did not consent to the sexual act. However, the Indian legal
system has taken steps towards addressing gender biases in IPC laws, including implementing
the Criminal Law (Amendment) Act, 2013, which expanded the definition of rape and
increased the punishment for sexual offenses. Additionally, the Sexual Harassment of Women
at Workplace.

Here are some examples of gender biased laws in India:

1. Section 497 of the Indian Penal Code, which criminalizes adultery but only punishes men
for having sexual relations with another man's wife, has been criticized for its gender bias
towards women.8
2. Under the Muslim Personal Law, Muslim women do not have the same rights as men in
matters of inheritance, divorce, and child custody. 9
3. Section 155(4) of the Indian Penal Code places the burden of proof on the victim in cases
of rape and sexual assault. This provision can make it challenging for victims to seek
justice, as they are often required to prove that they did not consent to the sexual act. 10
4. The Hindu Succession Act, 1956, which excluded daughters from inheriting ancestral
property equally with sons until the amendment in 2005, has been criticized for its gender
bias towards women.

8
Indian Penal Code, 1860, Section 497.
9
Ibid 3
10
Indian Penal Code, 1860, Section 155(4)

5
 5. Hate crimes against transgender individuals have become a major concern in recent years.
In India, there have been several instances of violence against transgender individuals,
including murder and sexual assault. 11
6. Honor killings, which are often committed against women who are perceived to have
violated traditional gender norms, are a form of gender bias crime that is prevalent in some
parts of India. 12
7. Crimes related to dowry, such as dowry deaths and harassment for dowry, are also a form
of gender bias crime that is prevalent in India. 13
8. Acid attacks, which are often committed against women and girls as a form of revenge or
punishment, are another form of gender bias crime that is prevalent in India. 14
9. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal)
Act, 2013, requires all employers to have an internal complaints committee to address
complaints of sexual harassment at the workplace. 15
10. The Maternity Benefit Act, 1961, provides for maternity leave and other benefits for
women employees.
11. The Immoral Traffic (Prevention) Act, 1956, prohibits trafficking of women and children
for commercial sexual exploitation.
12. The Prohibition of Child Marriage Act, 2006, prohibits child marriage and provides for
punishment for those who promote or solemnize such marriages. The Prohibition of Child
Marriage Act, 2006 is a law in India that prohibits the marriage of children below the age
of 18 years for girls and 21 years for boys. The act was enacted to prevent child marriages
and to protect the rights of children, especially girls. The act provides for punishment for
those who promote or solemnize child marriages, as well as for those who fail to prevent
such marriages.
13. The Equal Remuneration Act, 1976, prohibits discrimination in wages on the basis of
gender and provides for equal pay for men and women for the same work or work of
similar nature.

11
National Crime Records Bureau, Ministry of Home Affairs, Government of India, "Crime in India," 2019, Table
2.17 (https://ncrb.gov.in/en/crime-in-india-2019).
12
Indian Penal Code, 1860, Section 300.
13
Dowry Prohibition Act, 1961.
14
Indian Penal Code, 1860, Sections 326A and 326B
15
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

6
 14. The Industrial Employment (Standing Orders) Act, 1946, requires employers to define and
publish standing orders that regulate employment conditions such as working hours, leave,
and termination.
15. The Protection of Women from Domestic Violence Act, 2005 - This act provides protection
to women from domestic violence and abuse, including physical, emotional, and economic
abuse. It defines domestic violence broadly to include not only physical abuse but also
emotional, verbal, sexual, and economic abuse. It also provides for the appointment of
Protection Officers and the establishment of Domestic Violence Protection Cells for the
prevention and redressal of domestic violence.
16. The Protection of Children from Sexual Offences Act, 2012 - This act provides for the
protection of children from sexual offenses, including sexual assault, sexual harassment,
and pornography. It defines a child as any person below the age of 18 years and provides
for the establishment of special courts for the speedy trial of offenses against children. It
also provides for the appointment of Child Welfare Committees and the establishment of
Special Juvenile Police Units for the protection of children.

How are women centric laws misused – Important Case Laws

While women centric laws are indispensable to protect the interests of women, there are
instances where these laws have been misused by women for their own benefits. In this process,
there is a good chance that an innocent man might get punished. Because of such an utter
misuse, the sanctity of these laws is ruined. There are many cases in which women have
misused the laws specifically made for them to satisfy their ego and their needs. Let us look at
some of these cases.

The historic case of Vishaka vs. State of Rajasthan16, which was promulgated into the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the
Act”) in 2013, was the first codified legislation to deal with sexual harassment of women at
work.17 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 is not gender neutral and applies to the protection of women only.18 The
bill was originally gender neutral, according to Rajesh Vakahria, a member of SIFF19, until the

16
AIR 1997 SC 3011
17
https://thedailyguardian.com/sexual-harassment-at-workplace-a-critical-analysis/
18
https://zeenews.india.com/bbv/yawning-gaps-in-yet-to-be-notified-sexual-harassment-at-workplace-
act_893373.html
19
Save India Family Foundation

7
Ministry of Women and Child Development and certain NGOs interfered and altered the
name.20 He said that it was an outdated concept to consider that only women suffer from sexual
harassment. It is condemned as a type of violation of the Fundamental Right to Gender Equality
and the Right to Life and Liberty entrenched in Articles 14, 15, 19(1)(g), and 21 of the Indian
Constitution. In February 2020, the Supreme Court reaffirmed this position in Punjab and Sind
Bank vs Durgesh Kuwar 21. The fundamental difficulty with sexual harassment regulations is
that they are not gender-neutral, i.e., only an aggrieved woman can submit a sexual harassment
complaint in the current state of affairs. Men and transgender people are not allowed to bring
a sexual harassment complaint at work under the law.

In the case of Sejalben Tejasbhai Chovatiya vs. State of Gujarat 22, the petitioner (the wife)
did not state in the facts that she was receiving an income of Rs. 40,000 per month from the
business. She also stated that she was performing all the domestic/household work but she
never once received an income in exchange. Because of this false evidence adduced by the
petitioner, she had committed perjury. The court said that the laws which usually favour the
women have been misused by providing false evidence and for the above reasons, the court
dismissed the petition.

In the case of Savitri Devi v Ramesh Chand & Ors 23, the judge has stated that, women centric
laws are created for the benefit of the women who are subjected to domestic violence and other
violence against women, but these laws have been misused by dragging the far relatives of the
husbands into the case, even the minors and grandparents. Women are filing a case against 10-
15 people at once. When the cruelty or an offence was committed by only the husband or the
in-laws or both, the case should be filed against those people alone and not the whole family
of the accused. The same view from the aforementioned case has been taken in the case
of Kanaraj vs. State of Punjab 24, where the judge stated that the relatives of the husbands
cannot be involved in the case unless the accusations are proved beyond reasonable doubt. If
this cannot be proven the relatives of the husbands cannot be included in the case for the fault
of the husband. The judge also stated that, in order to get justice for dowry deaths, the family

20
https://timesofindia.indiatimes.com/india/Make-workplace-harassment-laws-gender-neutral-demand-
NGOs/articleshow/17376208.cms
21
CA 1809/2020

22
MANU/GJ/3099/2016
23
II (2003) DMC 328
24
2000 CriLJ 2993

8
of the deceased tend to involve as many members of the family as they can. This act can affect
the prosecution and eventually weaken the case against the culprit.

In the case, Narayan Ganesh Dastane v. Sucheta Narayan Dastane 25, the respondent, i.e.,
Sucheta Narayan Dastane, wife of the petitioner was held guilty of cruelty against the appellant,
the husband. The facts of this case prove that cruelty cannot only be committed by the husband
but also the wife. The wife could also affect the husband mentally.

In Rajesh Sharma and Ors. v. State of Bihar 26, the court gave a few directions to avoid the
misuse of Section 498-A of IPC. The court ordered to create a welfare committee in every
district, which should comprise para-legal volunteers, wives of officers, social workers, and
other citizen volunteers. The duties of committee members will be to look into the cases related
to Section 498-A of IPC that the police stations receive. The committees will discuss the issue
and provide a report to the authorities. The arrest of the accused should be kept on hold until
the report of the committee is received. The above report should be viewed by the magistrate.
The court also permitted the legal services authority to provide training to the committee
members once in a while.

In the case, Saritha v R. Ramachandran 27, the court stated on record that educated women
who seek divorce also initiate proceedings against the in-laws (who did not subject the women
to cruelty) under 498-A of IPC, which is absolute misuse of the provisions that were made to
benefit women. The court also mentioned that “This is nothing but abuse of beneficial
provisions intended to save the women from unscrupulous husbands”.

In the cases, Bhupinder Kaur and others vs. State of Punjab 28 and State Vs. Srikanth 29 , the
courts dealt with relatives of the husband being dragged in the case even when they were not
related to any of the allegations made against the husband regarding cruelty and dowry.

In the case, Sushil Kumar Sharma v. Union of India and others 30 , the court stated that, “By
the misuse of the provision, a new legal terrorism is unleashed. The provision is intended to be
used as a shield and not an assassin’s weapon.” From this expression, the hon’ble judge
intended to say that these provisions are used to aid and protect those who are in need of them

25
1975 AIR 1534
26
(Crl.) No. 2013 of 2017
27
I (2003) DMC 37 [DB]
28
2003 CriLJ 3394
29
2002 CriLJ 3605
30
JT 2005(6) 266

9
and not for the use of an impure and manipulative motive. The court also stated that the role of
the court is to reach the truth in the matter and not take the wide allegation without looking into
the matter in a proper way, by the investigating agency.

Need for Change in Laws with the Change in Society

The laws discussed here were made in the years 1860, 1956, 1983 etc., – an era when women
did not really have much of a say in anything. At that period of time, men were said to be
superior to women. That must have been the reason why all these laws are female oriented. But
laws should be ever dynamic and must keep pace with the evolving social milieu. Laws should
be amended in tune with the new normal. In today’s world, women are also harassing males
and subjecting males to cruelty; as has been already established. The laws should be amended
according to the present needs and situation in India. For instance, in India, homosexuality was
not a thing according to the rules of the society a hundred years ago. Nevertheless, people are
gaining awareness about this particular issue and altering their point of view about
homosexuality. Owing to this, and in keeping with the times, the Supreme Court of India
decriminalized consensual gay sex and homosexuality in 2018.31 In the same way, the society
and the legislature should recognize the crimes of cruelty and harassment being committed
against males (especially married men). We may have more amendments like these in the future
as well because with time, people’s mindset changes and with these changes occurring, changes
in the law become inevitable. If changes in the law do not occur, our social milieu and the laws
would not be consistent with each other. Laws and society should always run hand in hand.
With a change in one, change in the other becomes indispensable.32

31
Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018 INSC 790)
32
Counsel, H., & Counsel, H. (2021, June 25). Misuse Of Women Centric Laws In India | Hello Counsel. Hello
Counsel | the Indian Law Helpline. https://www.hellocounsel.com/misuse-of-women-centric-laws-in-india/

10
Conclusion

The misuse of law by women in India violates the constitutional rights of men and their families
and must be addressed. The government should take appropriate steps to ensure that such laws
are not misused and that men and their families are given a fair chance to defend themselves.
Additionally, more awareness should be created about the misuse of law by women in India,
so that the rights of men and their families are protected. Gender bias is a serious issue in our
society. It is important to be aware of the ways in which we may unintentionally perpetuate it,
and to strive to create a more equitable society. Gender bias can have a negative effect on both
men and women, leading to unequal opportunities and outcomes. We must recognize the
importance of challenging and addressing gender bias in order to create an equitable and fair
society. We must create an environment where everyone is respected, regardless of their gender
or identity. Furthermore, we must ensure that everyone has an equal opportunity to participate
in all aspects of society. We must work together to ensure that everyone is treated with respect
and dignity and that their opportunities are not limited by their gender. Finally, we must strive
to create a society where everyone is accepted and respected for who they are, regardless of
their gender.

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