Though India does not recognise rape by a woman, there are nuances in law by which she can be prosecuted for rape or gang rape. This makes it imperative to have gender neutral laws on rape
By Sanjay Raman Sinha
In a recent case, the Supreme Court revisited the contentious issue of rape by a woman. A woman had filed a criminal case against her 61-year-old widowed mother-in-law, accusing her of rape. The matter came up before the Punjab and Haryana High Court. The widow then approached the Supreme Court for anticipatory bail, whereby the Court agreed to examine the issue. Meanwhile, it granted the woman protection from arrest and asked both women to cooperate with the police.
While Indian laws do not recognise rape by women, there are nuances in the law by which she can be prosecuted for rape or gang rape. The issue of a woman committing rape is a biological impossibility. However, there have been cases before courts about “rape by a woman”. Amended provisions of Sections 375 IPC and 376 IPC specifically state that the act of rape can only be done by a man and not by “any woman”.
The amended provision of Section 376-D IPC states that “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”. Importantly, under Section 11 IPC, a “person” can include any company or association or body of persons.
So, if a woman is complicit in facilitating a gang rape or rape, she is liable to be held guilty and may be prosecuted. The provisions envision joint liability for rape, and the basis of that liability is a common intention during the crime. In short, it is a pre-mediated act which consummates the crime with the joint participation of persons.
In February this year, based on this reading of law of Section 376-D IPC, the Allahabad High Court held that a woman cannot commit rape, but if she had facilitated the act with a group, she may be prosecuted for gang rape.
Furthermore, Section 375 of the Indian Penal Code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case, if she is under 18 years of age.” For rape to be established legally, penetration is necessary. So does that rule out rape by women?
In 2006, the Supreme Court was faced by one such strange case. It was alleged that one Priya Patel was complicit in committing “gang rape” on the appellant, a woman. The prosecutrix (victim) had requested the appellant to save her. Instead, the appellant slapped her, closed the door of the house and left the place of the incident. On the basis of the complaint lodged, investigation was undertaken and a charge-sheet was filed.
The revision filed before the High Court questioned the legality of the charge framed, relatable to Section 376 (2)(g) IPC. It was contended that a woman cannot be charged for commission of rape. The High Court was of the view that though a woman cannot commit rape, if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she can be prosecuted for “gang rape”.
Explanation 1 says: “Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.” Here the use of the term “person” signifies that the lawmakers have made the provision gender neutral, and a man or a woman can be framed and convicted. As a woman can’t rape another woman for obvious reasons, it follows that what is implied here is common intention.
The Priya Patel vs State of Madhya Pradesh verdict states: “A person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape.”
“Common intention” is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of them is liable for that act in the same manner as if it was done by him alone.” In this particular case, the woman was held not guilty of gang rape. This case and verdicts in similar cases have raised the need for a gender neutral law, not only for rape, but for other crimes as well.
Jurisprudence demands that law should be interpreted not in letter, but in spirit. Reason should be applied to the facts of the case and justice dispensed with as per the “soul of the law”. The history of law and development of jurisprudence have focused on “prudentia’’—skilful knowledge or good judgment—in law. This skill of interpretation of law is what is expected from jurists and judges.
The Priya Patel verdict had been found wanting in this regard. Now that the Supreme Court has decided to reconsider the case of the widow, it is incumbent that a wider assessment of the case be made, taking into consideration the underlying principles involved and a more progressive verdict enunciated.
There is also a socio-legal question involved. What if a man is forced to have sex with a woman against his consent? Would that amount to rape? If the same condition is applied to a woman, then it amounts to rape, but due to legal asymmetry, gender biased laws and cultural mores, the sexual exploitation of a man by a woman is not legally recognised. There is a strong case for sex-without-consent or enforced-sex to be made a gender neutral crime.