Can women face gang-rape charges without committing act? What Delhi HC judgment says

The Delhi High Court on Thursday ruled that women could also be charged with gang-rape under Section 376D of the Indian Penal Code and Section 70 of the Bharatiya Nyaya Sanhita (BNS), even if she has not personally committed the act of rape.

The court observed that the use of the phrase ‘one or more persons constituting a group’ to define a gang-rape under these laws could be extended to women as well.

Justice Anup Jairam Bhambhani ruled that regardless of gender, a person with a common intention that rape be committed upon a woman could be charged for it, even if they physically did not commit the act.

“There is no rationale or basis to restrict the word ‘persons’ appearing in the phrase ‘one or more persons constituting a group’ to mean only a group of men,” the Delhi High Court observed in its October 15 judgment, as per an ANI report.

“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,” it added.

The Court also clarified the scope of its ruling, saying that it was only dealing with the question of whether or not a woman can be charged with gang-rape.

It did not explore the question of whether a woman can independently commit the offence of rape, under the statutory definition of the act.

It also clarified that a woman, by herself, could not be charged with gang-rape, as such a charge would prima facie not conform to the statutory definition of rape as currently construed, the report added.

What was the case about?

Justice Bhambhani's remarks came amid a criminal revision petition challenging the charges faced by the mother of a minor girl and another accused.

The case against the woman arose out of allegations that the mother of the minor girl had threatened and forced her to have sexual relations with the other accused on multiple occasions between December 2023 and July 2024.

Though the victim had also alleged that her mother had remained in the room during the incidents of sexual assault, the mother had challenged the charges against her, citing Section 63 of the BNS, which limited the scope of gang-rape perpetrators to only men.

The petitioners had also relied on Supreme Court judgments in Priya Patel v. State of Madhya Pradesh and State of Rajasthan v. Hemraj, arguing that a woman could not be prosecuted for gang-rape.

The Dehi HC, however, had pointed out that apex court's decisions had utilised the pre-2013 statutory framework that treated gang-rape as an aggravated form of rape under Section 376(2)(g) of the IPC—before gang-rape became a separate offence under Section 376D.