The Delhi high court on Friday held that a woman can be charged with the offence of gang rape even if she has not personally committed the act of rape.
A bench of justice Anup Jairam Bhambhani observed that there was no rationale or basis to interpret the phrase “one or more persons constituting a group” in the provision on gang rape as referring exclusively to men. The court said the term “persons” must instead be interpreted in a “gender-neutral” manner.
“In the opinion of this court, this is significant, since for purposes of the offence of gang rape it is not necessary that a person acting in furtherance of a common intention must also be amongst the persons who physically commit the offence of rape. For instance, a woman who may not be part of the group of persons who commit the physical offence of rape may yet have acted in furtherance of a common intention to have rape committed upon the victim,” the court said.
It added, “As a sequitur to the above, this court is of the view that there is no basis to hold that a woman cannot be charged with the offence of gang rape under section 376D of the Indian Penal Code (IPC) and section 70 of the Bharatiya Nyaya Sanhita (BNS). It is, however, necessary to clarify that a woman alone cannot be charged with the offence of gang rape since that would prima-facié not be in conformity with the statutory definition of rape as it appears even in the post-2013 section 375 of IPC and section 63 of BNS, as currently construed.”
The court passed the order while dealing with a petition filed by the mother of a minor survivor, challenging a trial court’s January 17, 2025, order charging her under sections 70(2) (gang rape of a woman under 18 years of age), 351(3) (criminal intimidation) and 64(2)(m) (aggravated rape) of the BNS, and section 6 of the Protection of Children from Sexual Offences (POCSO) Act.
In the present case, the minor survivor’s mother had filed an FIR in July 2024, alleging that her daughter had been kidnapped. In her statement, the minor said that her mother had threatened that if she did not have physical relations with the accused, he would kill her. She also alleged that her mother had forced her to have such relations and was present during the incidents of sexual assault.
In her petition before the high court, the mother asserted that she could not be charged with the offence of gang rape. It was also contended that only a ‘man’ could commit rape, that the offence of ‘gang rape’ could only be committed by a ‘group of men’, and that a woman could never be charged with that offence.
Amicus curiae Rohan J Alva submitted that Section 63 of the BNS envisages the possibility of rape being committed by a woman or a non-male offender, as the provision is no longer confined to penile-vaginal penetration. He further argued that Section 63 aims to protect women from all forms of sexual assault and that, since it recognises acts of penetration beyond penile-vaginal penetration as rape, there is no rational basis to restrict the offence’s applicability to male offenders alone.
The Delhi Police adopted Alva’s submissions.
Consequently, the court dismissed the petition and upheld the trial court’s order.