Supreme Court to examine whether woman can be booked for rape under Section 375 IPC

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The question of whether a woman can be made an accused in a rape case under Section 375 of the Indian Penal Code (IPC) arose before the Supreme Court on Friday after a 62-year-old widow claimed that she had been unnecessarily implicated in a false rape case filed against her son.

The matter came up before a bench of Justices Hrishikesh Roy and Sanjay Karol today when the Court expressed doubts over whether a woman can be booked in a rape case.

“According to us, it is only a man who can be accused,” the Court orally observed.

The Court proceeded to issue notice before adjourning the anticipatory bail plea filed by the widow in the case.

Section 375 of the Indian Penal Code (IPC) defines the offence of “rape” under Indian law. The said provision begins by referring to a “man” (“a man is said to commit ‘rape’ if he ….” ) as the perpetrator, meaning that generally only men can potentially be booked for the offence of rape.

The counsel for the petitioner argued that a woman cannot be booked for rape. Further, it is settled law that a woman cannot be said to share common intention in gangrape cases as women are excluded from the definition of rape.

The case concerns allegations that the accused-widow and her son were complicit in the carrying out the rape of a woman earlier this year.

The complainant is said to have been in a long-distance relationship with the elder son of the widow after they met via Facebook.

The widow alleged that the complainant eventually started to live in the house of the widow after her elder son “married” the complainant without any rituals or ceremonies, through a video call. The elder son, who lived in the USA, had never physically met the complainant, the widow added.

While so, in January this year, the widow’s younger son came home from abroad.

At this juncture, the widow said that her family members began pressurising her to end the informal “marriage” arrangement between the complainant and her elder son.

Consequently, the widow said that a compromise agreement was executed with the complainant in the presence of Panchayat members to terminate the said relationship. The widow also said that an amount of ₹11 lakh was handed over to the complainant as part of the compromise, which was executed in February this year.

As per the widow, weeks after the compromise, the complainant went on file a criminal case against the widow and her younger son, accusing them of having committed rape (Section 376 (2)(n) of the Indian Penal Code/ IPC), wrongful confinement (Section 342), hurt (Section 323) and criminal intimidation (Section 506).

After a trial court in Punjab and the Punjab and Haryana High Court declined to allow the widow’s plea for pre-arrest bail, she approached the Supreme Court for relief.

The High Court had earlier rejected the bail plea after taking note of the allegations made by the complainant in the matter.

The complainant claimed that she had pledged to marry the elder son of the widow in September 2022 after a three-year relationship. The promise was made after the elder son threatened to die by suicide if she were to marry anyone else, the complainant alleged. She also claimed that it was the elder son who asked her to live with his mother until he could come to India, perform a court marriage and take her with him to the USA.

The complainant alleged that his mother and younger brother later tried to pressurise her into marrying the younger brother. After she refused to do so, the widow was alleged to have locked the complainant in a room with her younger son, where he raped the complainant and took explicit pictures of her. The complainant also alleged that the widow had thrown hot tea at her feet when the complainant tried to contact her parents.

The widow countered that it was a cooked-up case with false allegations leveled after a huge delay. However, the High Court opined that these were aspects to be decided during the trial and dismissed her anticipatory bail plea.

On a related note, in February this year, the Allahabad High Court held that although a woman cannot commit the offence of rape, if she facilitates the act of gang-rape of any woman by a group of people, then she may be prosecuted for the offence as per the amended provisions of the IPC.

The petition before the Supreme Court was filed through advocate Rishi Malhotra.

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