How Can Woman Be Booked For Rape Under Sec 375 IPC? Supreme Court Stays Arrest Of Widow

The Supreme Court on Friday expressed doubts on whether a woman can be booked for rape under Section 375 of the Indian Penal Code (IPC) and for gang rape under Section 376D of the IPC. 

A bench of Justice Hrishikesh Roy and Justice Sanjay Karol was hearing the anticipatory bail plea of a 61 year old widow who had been booked under Section 376 (2)n (rape) , Section 342 (wrongful confinement), Section 323 (hurt) and Section 506 (criminal intimidation) and Section 34 (Act done in furtherance of a common intention) of the IPC. The woman was implicated as a co-accused in a rape case filed against her younger son. 

Section 376 (2)n prescribes punishment for committing rape repeatedly on the same woman. 

The Counsel for the petitioner relied on the 2006 decision of the Supreme Court in Priya Patel vs State Of M.P which held that under Section 375 of the IPC, rape can only be committed by a man. The Court issued notice in the plea and posted the matter after 4 weeks. Interim protection from arrest was granted to the petitioner until then. 

When the counsel for the petitioner argued that according to the 2006 ruling, a woman cannot be charged with gang rape either, Justice Roy asked why the Section 376D which deals with gang rape says 'persons' when it could've straightaway said 'man'. Section 376D reads as thus:

376D. Gang rape. - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine

'You must assist us with this, we are surprised this escaped the attention of legislators' Justice Karol told the counsel for the petitioner. 

According to the facts of the case, the complainant was initially in a long-distance relationship with the elder son of the widow who lives in USA, after they met via Facebook. The Complainant then started living with the petitioner widow, after a 'marriage' ceremony was conducted via video call. The complainant has never met the elder son, the widow's plea states.  Meanwhile, the younger son of the widow visited them from Portugal. 

The widow's plea states that later, the complainant and her family started pressurising her to end the informal marriage between her elder son and the complainant. A compromise deed was reached before the Panchayat and the complainant was paid Rs. 11,00,000/-,  the widow claims in her plea.  

Subsequently, at the behest of the complainant an FIR was registered against the younger son and the widow for rape and other charges. 

Advocate for the Petitioner: Adv. Rishi Malhotra.

Also read - A Woman Facilitating Act Of Rape With A Group Of People May Be Prosecuted For 'Gang Rape' U/S 376D IPC: Allahabad High Court

Case Title: KAMALJIT KAUR V. STATE OF PUNJAB, SLP(Crl) No. 15265/2023