Delhi High Court says women facilitators can face gang rape charges

The Delhi High Court upheld a gang rape charge against a woman accused of facilitating her minor daughter's assault. The ruling establishes that shared intention and participation can attract group liability regardless of gender.

In Short

• Justice Anup Jairam Bhambhani dismissed the accused mother's legal petition
• Alleged assaults occurred repeatedly between December 2023 and July 2024
• Girl left home in July after renewed threats involving the co-accused

The Delhi High Court has ruled that a woman can be charged with gang rape if she facilitated the crime, even if she did not physically commit the act herself, news agency Press Trust of India reported.

Justice Anup Jairam Bhambhani delivered the judgment on Thursday while dismissing a petition filed by a woman accused of threatening her minor daughter and forcing her to have sexual relations with a co-accused.

Answering whether a woman can be charged with gang rape under Section 376D of the Indian Penal Code or Section 70 of the Bharatiya Nyaya Sanhita, the court said: “There is no basis to hold that a woman cannot be charged with the offence of gang rape under section 376D IPC and section 70 BNS.”

Section 70 of the BNS states that when a woman is raped by one or more people acting as a group or with a shared intention, each person in the group is considered to have committed rape. The punishment is at least 20 years of rigorous imprisonment and can extend to imprisonment for the remainder of the offender's natural life, along with a fine.

Justice Bhambhani said the phrase “deemed to have committed the offence of rape” reflected the legislative intent that every person in the group need not have individually committed the physical act to face a gang rape charge.

The court clarified that its ruling did not mean a woman acting alone could be charged with gang rape. It also said it was not expressing an opinion on whether the word “man” in Section 375 of the IPC, as amended in 2013, or Section 63 of the BNS was gender-neutral.

According to PTI, the case arose from a first information report registered at Delhi's Bhalswa Dairy police station in July 2024. The prosecution said the minor girl alleged that her mother threatened her and forced her to have sexual relations with the other accused. She alleged that the assaults took place repeatedly between December 2023 and July 2024.

The girl said she left her home in July 2024 after her mother again threatened her and tried to force her to have sexual relations with the co-accused.

The woman's lawyer argued that Section 63 of the BNS defines rape by specifically referring to a man as the perpetrator and that a woman, therefore, could not be prosecuted for gang rape.

Advocate Rohan J Alva, who assisted the court as amicus curiae, argued that the gender of a person should not determine whether they could be made an accused if they were part of the group and contributed to the offence.

Alva said there was no rational basis to limit Section 376D of the IPC and Section 70 of the BNS to male offenders. He argued that the provisions applied to a group of people who shared the intention of having the victim raped, regardless of their gender.

The High Court dismissed the woman's challenge to the charges and upheld the trial court's January 17, 2025 order, ruling that a woman who is part of a group and facilitates rape can face a gang rape charge even if she does not commit the physical act.

- Ends