Justice Is not Gendered — But Our Laws Still Are
Introduction: When Law Sees Only One Kind of Pain :-)
· Justice is supposed to be fair — equal for everyone, without bias. But in India, many laws still only recognise one kind of victim. If you are a woman facing abuse, the law sees you. But if you are a man, a transgender person, or anyone outside the traditional frame, your pain often goes unnoticed — not because it is less real, but because it does not fit the legal definition of who a victim should be.
· Whether it is maintenance, custody, rape, or domestic violence, our legal system still assumes that only women suffer and only men harm. But that is not how real life works. Men can be harassed. Transgender persons can be raped. Fathers can be nurturing parents. And women can be aggressors too. The law rarely reflects this truth.
· When it comes to property and divorce, the law often favours men. In most families, sons are given more importance than daughters when it comes to inheritance. Transgender persons are rarely even considered. And in divorce cases, especially under some personal laws like Muslim law, men often have more control — whether it is about ending the marriage or keeping property. This creates an unfair situation where women and transgender persons are left with fewer rights and less support. These laws do not reflect the reality of modern families or relationships. Everyone deserves equal say, equal share, and equal protection — no matter what their gender is.
· Article 14 of the Indian Constitution provides “equal protection of law and equality before law”, i.e. no person is above the law, and all are subject to the same laws and to be treated equally by the law and in the same circumstances. However, justice in India has a gender. In property rights, it favours males, while for harassment, it considers victims only females. Now it is high time to look over these problems and consider the law beyond labels. Justice is for everyone because pain does not ask your gender — and neither should the law.
Gender-neutral laws are legal rules that apply equally to all genders — male, female, transgender, and non-binary — without assuming traditional gender roles. They aim to ensure fairness and equality, such as:
> Allow any spouse to claim maintenance, regardless of gender.
> Let both parents be considered equal in custody decisions.
> Recognise same-sex marriages and LGBTQ+ families.
> Remove gendered terms like “husband” and “wife” from statutes, replacing them with “spouse” or “partner”.
Maintenance is not a One-Way Street :-)
Section 125 of CrPC = Section 144 of BNSS
· Maintenance rights are available to wives, minor children, adult children with disabilities, and parents who are unable to maintain themselves, and the right can be claimed from a person with sufficient means who neglects or refuses to provide for them.
· A wife can claim maintenance if she is unable to support herself, provided she is not living in adultery or separated from her husband without sufficient cause. However, a husband cannot claim maintenance even if he is unable to maintain himself and the wife has sufficient means to do so.
· Section 144 of BNSS feeds the idea that only women can be abandoned — and only men must pay. Maintenance should be about need, not gender. But the law still sees only one kind of dependent.
Hindu Adoptions and Maintenance Act (HAMA), 1956
· Section 18: Maintenance
> A Hindu wife is entitled to be maintained by her husband during her lifetime.
· Section 19: Maintenance of widowed daughter-in-law
> A widowed daughter-in-law has a right to maintenance from her father-in-law.
· No provision in the Act allows a husband to claim maintenance from his wife — even if he is unemployed, disabled, or abandoned. The law assumes that men are always providers, and women are always dependents. Even if the wife earns well and the husband is financially weak, the law does not obligate her to support him. This reflects a patriarchal mindset where financial vulnerability is only legally recognised for women, not for men or transgender persons.
· The law says a wife must be maintained — but never asks if a husband might need it too. Section 18 protects her dignity. But where is his? Maintenance is not about gender. It is about survival.
Muslim Personal Law
· The men are liable to maintain their wives during the duration of marriage and even after the dissolution of the marriage in the iddat period. Therefore, it is the obligation of the husband to provide maintenance to his wife, irrespective of whether the financial condition of the husband is good or bad.
· No provision under traditional Muslim law allows a husband to claim maintenance from his wife, even if he is unemployed, disabled, or abandoned. The law does not recognise men as dependents in the marital relationship.
Need does not wear a gender — and neither should maintenance. If justice is blind, why does maintenance still see only women? Support should be for the dependent, not just the wife. A hungry husband deserves dignity too — not silence from the law.
Parenting Is Not Gendered: Natural Guardianship Must Be Equal
Under the Hindu Minority and Guardianship Act, 1956
· For a legitimate boy and an unmarried girl, the natural guardian is the father and after him, the mother. For an illegitimate child, the mother is the natural guardian, and after her, the father.
· For the married minor girl, the husband is the natural guardian.
· Why should guardianship depend on gender or marital status, instead of who actually cares for the child? Why is the father automatically preferred, even if the mother is more involved or capable? And how can a husband become the guardian of a minor girl, when the marriage of a minor is prohibited?
· Under Muslim personal law, the natural guardian is also the father.
Guardianship and Wards Act, 1890
· The Guardians and Wards Act puts the child’s welfare above parental rights or gender roles. It allows for gender-neutral guardianship, unlike many personal laws that prioritise the father.
The best parent is not defined by gender — but by care. Guardianship should be earned through nurture, not assumed through tradition.
Property Rights Belong to All — Not Just Man
· Property rights in India are not the same for everyone. They are shaped by a mix of religious and secular laws, and for a long time, these laws have mostly favoured men. Even though laws like the Hindu Succession Act were changed to give daughters the same rights as sons, things do not always work that way in real life — especially in villages, where old customs still dominate.
· In inheritance under Muslim law, the Quran says that a daughter should get half the share of what a son receives. While this is based on religious rules, it shows a clear gender gap. When we look at it from the point of view of constitutional equality, it raises serious questions about fairness.
· For transgender people, the situation is even harder. Most property laws do not mention them at all. To claim any rights, they are often forced to choose between being seen as male or female, which ignores their identity and creates big problems when it comes to inheriting property.
· Inheritance is not just about property — it is about dignity. And the law still denies it to many. Transgender persons do not fit the law’s boxes — so the law leaves them out.
Article 15 of the Indian Constitution prohibits the state from discriminating against any citizen on the grounds of religion, race, caste, sex, or place of birth. However, the state is doing so by not giving equal property rights to women and transgender individuals. This is clear discrimination on the basis of sex.
Rape Is Not Just Her Story
· India’s rape laws still define the victim as a woman and the perpetrator as a man. This narrow framing leaves male and transgender victims invisible in the eyes of the law. Under the Bharatiya Nyaya Sanhita (BNS), 2023, Section 63 continues to treat rape as a gender-specific crime, ignoring the reality that anyone can be sexually assaulted — regardless of gender or identity.
· Many believe that men are stronger; therefore, they must be able to defend themselves against rape. A man not able to defend himself is an absurd impossibility.
· According to the NISVS (National Intimate Partner and Sexual Violence Survey) 2010 Report, nearly 1 in 5 women (18.3%) and 1 in 71 men (1.4%) in the United States have been raped at some time in their lives, including forced, compelled penetration, attempted forced penetration, or alcohol/drug facilitated compelled penetration. More than one-quarter of male victims of compelled rape (27.8%) experienced their first rape when they were 10 years of age or younger.
· Transgender individuals often face high levels of sexual violence, but most cases go unreported. Why? Because of stigma, fear of discrimination, and the lack of proper legal protection. Studies show that transgender people are over four times more likely to be sexually assaulted than cisgender (non-trans) people.
· In 2022, India’s National Crime Records Bureau (NCRB) reported zero rape cases involving transgender victims. But this does not mean it is not happening — it means it is not being reported. In reality, studies show that sexual violence against transgender people is very common.
> A study from 2014–2015 found that 31.5% of transgender women were forced into their first sexual experience.
· In October 2025, 25 transgender women in Indore attempted mass suicide in protest of police inaction after one of them was allegedly raped.
· In the case of Ms. X vs. State of Uttarakhand (2019), the court affirmed a trans woman’s right to have her rape complaint registered under laws for women, setting an important precedent for self-identification in criminal law.
· Under Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 — which replaced Section 375 of the IPC — rape is defined as a crime where a man assaults a woman. This definition leaves out men, transgender, and non-binary individuals, meaning they are not legally recognised as victims of rape under this law.
· The question whether a woman can commit gang rape was dealt by the Supreme Court in the case of Priya Patel v. State of M.P (2006) 6 SCC 263. The language of section 376(2)(g) provides that ‘whoever’ commits gang rape shall be punished, etc. Further, the explanation elucidates that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each such person shall be deemed to have committed gang rape. Therefore, technically, the act of penetration is not required to be performed by each member of the group. Rather, the presence of ‘common intention’ is sufficient for a person to be convicted of gang rape. However, the court held that a woman cannot have an intention to commit rape.
· Rape and sexual abuse are not just women’s issues — anyone can be a victim, including men, boys, and transgender people, no matter their gender or sexual orientation. What matters to the attacker is not the victim’s identity — it is about power and control, not desire.
· Most cases of rape are committed by men against women and children, but women can also be perpetrators — harming men, children, or other women. That is why it is so important to remember:
> Every victim deserves to be heard, believed, and supported. No matter who the attacker is, the blame always lies with them — never with the victim. Sexual violence is a crime. And justice must protect everyone, not just some.
He Bleeds Too: The Untold Side of Domestic Abuse
· The Domestic Violence Act (2005) was designed to protect wives and female live-in partners from abuse by their husbands or male partners. It also extends protection to women who are mothers, sisters, or widows facing violence within the household.
But here’s the problem:
> Men, transgender persons, and non-binary individuals who face domestic violence have no legal protection under this Act.
> A son abused by his mother, a transgender partner beaten by their spouse, or a male elder neglected by his family — none of them are covered.
> This creates a legal blind spot, where protection is based on gender, not on the presence of violence.
· Under Section 85 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaces Section 498A of the IPC, protection is offered only to wives who face cruelty or harassment from their husbands or in-laws. While this was a major step in protecting women from dowry abuse and domestic violence, it still excludes male and transgender victims who face similar harm.
· What about a husband bullied by his wife, or by his in-laws? What about false dowry cases, emotional abuse, or threats that men and transgender persons endure behind closed doors? The law does not see them. It assumes only women can be victims — and only men can be perpetrators.
· This one-sided approach not only violates the principle of equality under Article 14 but also silences countless victims who suffer without legal support.
When Divorce Favours One Gender:
· The Muslim Personal Law: Men can divorce unilaterally through talaq.
· Indian Divorce Act, 1869 (Christian Law): until 2001, Christian women had to prove adultery plus cruelty or desertion, while men only had to prove adultery.
Though amended, court delays and patriarchal attitudes still make it harder for women to access justice.
· When men can easily walk out of a marriage, but women are stuck fighting for a way out — that is not real equality.
· Recent Changes: The Supreme Court has declared instant “triple talaq,” which allowed men to unilaterally divorce their wives, having no second thought, unconstitutional, protecting Muslim women from this practice.
· If India had one simple divorce law for everyone, it could help make things fair for all genders — whether someone is a man, a woman, or transgender person. Right now, different laws treat people differently, and sometimes one gender has more power or easier access to justice than others.
· A uniform law would remove these unfair rules and make divorce more equal and balanced for everyone. But to do this, India would need to create new laws and take a careful, thoughtful approach that protects everyone’s rights and promotes true equality.
Who Arrests Whom? The Transgender Dilemma
· Under Section 46(4) of the Bharatiya Nyaya Sanhita (BNS), 2023, there are special rules for arresting women. For example, women can not be arrested after sunset or before sunrise unless there is an urgent reason, and even then, a female police officer must be present.
· But here’s the issue:
This law mainly protects biological females. It does not clearly say anything about transgender women — people who identify and live as women but were assigned male at birth. So, when a transwoman is arrested, it is unclear whether she gets the same protection. This legal gap can lead to mistreatment, confusion, or denial of rights.
· Meanwhile, men are usually arrested by male officers, but there is no strict rule — sometimes female officers may be present too. But for transgender persons, especially those who do not fit into the male/female binary, the law offers no clear guidance on how arrests should be handled respectfully and safely.
POCSO: A Glimpse of What Gender-Neutral Law Can Be
· The Protection of Children from Sexual Offences (POCSO) Act, 2012, is one of the few laws in India that is truly gender-neutral — at least in how it defines victims.
· What Makes POCSO Gender-Neutral?
> It protects all children under 18, whether they are boys, girls, or transgender. The law does not assume that only girls are victims — it clearly says any child can be sexually abused.
> This means a boy who is molested, or a transgender child who is assaulted, is equally protected under the law.
· Why This Is Important?
> Most Indian laws — like those on rape or domestic violence — only protect women and ignore male and transgender victims. But POCSO shows that it is possible to write laws that:
> Focus on the crime, not the gender of the victim.
> Offer equal protection to everyone.
> Send a strong message that sexual violence is wrong — no matter who the victim is.
· POCSO proves that protection does not need a gender — just a child in need.
Criminal Law Amendment Bill, 2019: A Step Forward?
· This bill was introduced to change some parts of India’s criminal laws, especially the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC). Its main goal is to make the law more gender-neutral, especially in cases of rape and sexual assault.
· What Makes It Different from Other Laws?
Most Indian laws — like Section 375 IPC or Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 — define rape as a crime committed by a man against a woman. This leaves out male and transgender victims, who also face sexual violence but are not legally recognised.
· Why Is This Bill Helpful?
> It gives legal protection to all victims, not just women.
> It helps transgender persons and men report sexual violence without being ignored or redirected to outdated laws like Section 377.
> It supports Article 14 of the Constitution, which promises equality before the law.
> It encourages a fairer justice system, where laws focus on the crime, not the gender of the people involved.
· Change of wording:
> The bill replaced gendered terms like “woman” or “man” with the word “person”.
> The bill avoided naming specific private parts in gendered terms. Instead, it used neutral descriptions like “genital,” “oral,” or “anal penetration” to cover all forms of sexual assault.
> The bill did not assume that the offender is always male or the victim is always female.
> It allowed for the possibility that any person — regardless of gender — could be a victim or perpetrator of sexual violence.
The bill was introduced as a private member’s bill, which was not passed into law.
Article 14: The Soul of Gender-Neutral Justice
· Article 14 says that every person is equal before the law — not just men or women, but everyone, including transgender and non-binary individuals. It promises two things:
> Equality before law: No one is above the law.
> Equal protection of laws: Everyone should be treated fairly by the law.
> This article does not mention gender — and that is powerful. It means the law must protect all genders equally, not just the male-female binary.
· Shayara Bano v. UOI (2017)
> The Court declared instant triple talaq unconstitutional.
> It protected Muslim women’s right to equality, showing that religious practices must also follow gender justice.
· Indian Young Lawyers Association v. State of Kerala (2018)
> The Court allowed women of all ages to enter the Sabarimala temple, ending a gender-based ban.
> It reinforced that exclusion based on gender violates equality.
· NALSA v. Union of India (2014)
> The Supreme Court said transgender persons are a “third gender”.
> It used Article 14 to say they deserve equal rights and legal recognition.
This case proved that equality is not limited to just men and women.
· Navtej Singh Johar v. UOI (2018)
> The Court struck down Section 377, which criminalised same-sex relationships.
> It said that LGBTQ+ people have the same rights to dignity, privacy, and equality.
> Article 14 was used to protect people regardless of their gender or sexual orientation.
Article 14 does not ask who you are — it asks if you are being treated fairly.
Conclusion: Justice Should not Ask Your Gender First
· In a fair society, justice should protect everyone equally — no matter if they are male, female, transgender, or non-binary. But in India, many laws still treat people differently based on gender. Some laws only protect women, while others assume only men can be offenders. This creates gaps in protection, leaving many victims unheard and unprotected.
· We have seen how laws like the POCSO Act show that gender-neutral protection is possible. We have also seen how Article 14 of the Constitution promises equality for all — and how landmark cases like NALSA, Navtej Singh Johar, and Shayara Bano have pushed the boundaries of gender justice.
· Imagine going through deep trauma — being abused, broken, and left with invisible scars — only to be told that your suffering does not count because you are not the “right” gender. That is the reality for many men, boys, and transgender persons in India who face sexual violence but are not recognised by the law.
> They are not counted in crime records, not protected at work, and not seen in policies. The silence around their pain is not just a legal gap — it is a message that says: “You do not exist.”
> This is why gender-neutral laws matter. They are not just about changing legal words — they are about making sure every survivor is seen, heard, and protected. Because pain does not have a gender, and justice should not either.
“Justice must see the truth, not the gender.”
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