The Supreme Court of India is poised to delve into a complex legal question: whether a woman can be charged under Section 375 for rape or under Section 376D for gang rape, as per the Indian Penal Code (IPC). This issue has emerged in a case involving a 61-year-old widow, co-accused in a rape case against her younger son.
The bench, comprising Justice Hrishikesh Roy and Justice Sanjay Karol, was hearing the anticipatory bail plea of the widow, who faces charges under multiple IPC sections, including Section 376 (2)n (rape), Section 342 (wrongful confinement), Section 323 (hurt), Section 506 (criminal intimidation), and Section 34 (act done in furtherance of a common intention). Notably, Section 376 (2)n specifies punishment for repeatedly raping the same woman.
During the proceedings, the widow’s counsel referred to the 2006 Supreme Court decision in Priya Patel vs State Of M.P, which clarified that under Section 375 of the IPC, only a man can commit rape. Based on this argument, the Court issued notice in the plea and granted interim protection from arrest to the petitioner, with the matter scheduled for a hearing after four weeks.
A critical point of discussion was raised by Justice Roy regarding Section 376D, which pertains to gang rape and uses the term ‘persons’ rather than ‘man’. He questioned the choice of wording, asking,
“Why does Section 376D, which deals with gang rape, say ‘persons’ when it could’ve straightaway said ‘man’?”
Also read-Supreme Court Declines Individual Hate Speech Cases, Focuses On Systemic Mechanism (lawchakra.in)
Justice Karol, addressing the petitioner’s counsel, emphasized the need for clarity:
“You must assist us with this; we are surprised this escaped the attention of legislators.”
The case’s background involves the complainant, who was initially in a long-distance relationship with the widow’s elder son, a resident of the USA, after they connected via Facebook. The complainant then began living with the widow following a ‘marriage’ ceremony conducted via video call, despite never having physically met the elder son. The situation took a turn when the widow’s younger son visited from Portugal.
The widow’s plea reveals that the complainant and her family later started pressuring her to dissolve the informal marriage. A compromise was reached before the Panchayat, and the complainant received Rs. 11,00,000. Following this, an FIR was lodged against the younger son and the widow, accusing them of rape and other offenses.
This case, titled KAMALJIT KAUR V. STATE OF PUNJAB, SLP(Crl) No. 15265/2023, stands as a crucial legal examination of the IPC’s rape provisions and their applicability to women. The Supreme Court’s decision in this matter could potentially lead to a significant reinterpretation of Indian rape laws.
