Delhi High Court rules women can be charged with gang rape

Women can be charged with gang rape under Indian penal law even if they do not physically commit the assault, provided they acted as part of a group sharing a common intention, the Delhi High Court has ruled.

Justice Anup Jairam Bhambhani delivered the decision while dismissing a petition by a woman challenging charges framed against her under Section 70 of the Bharatiya Nyaya Sanhita (BNS) and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. The ruling reinforces the strength of India's updated criminal justice framework, clarifying that anyone who facilitates or conspires in horrific sexual crimes can face the full force of the law.

What the court decided on the law

The court held that the statutory term "persons" used in Section 376D of the Indian Penal Code (IPC) and its successor provision, Section 70 of the BNS, cannot be interpreted to mean only men.

"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 court observed, holding that the phrase must be read in a gender-neutral manner.

Justice Bhambhani explained that gang rape was established as an independent, substantive offence following major criminal law amendments in 2013, a structure retained under the new Bharatiya Nyaya Sanhita. Because it operates as an independent offence rather than merely an aggravated form of rape, liability is not limited to the physical definition of rape set out in Section 375 of the IPC or Section 63 of the BNS.

"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," the bench said. "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 case before the court

The petition arose from a trial court order dated 17 January 2025 framing charges against a mother and a co-accused. The prosecution alleged that the mother had threatened and forced her minor daughter to engage in sexual relations with the male co-accused on multiple occasions between December 2023 and July 2024, remaining present in the room during the assaults.

The mother argued that statutory definitions of rape refer only to male perpetrators, citing earlier Supreme Court judgments including Priya Patel v. State of Madhya Pradesh and State of Rajasthan v. Hemraj. The High Court rejected that defence, pointing out that those earlier rulings interpreted the pre-2013 framework, before Parliament established gang rape as a distinct penal section.

Comparing statutory provisions on sexual violence

Scope and limits of the ruling

The court drew a strict line around its findings. It clarified that a woman acting entirely alone cannot be charged with gang rape. It also expressly left open the question of whether an individual woman could ever be charged with the core offence of rape under Section 63 of the BNS or Section 375 of the IPC, noting that the trial court's order stood firmly within the law.