THE slew of patriarchal judgments on rape that demonize women, for “inviting” this most heinous crime, continues with a recent judgment of the Allahabad high court that the victim invited the heinous crime. The case dates back to September 2024 when the woman, a student of a popular Noida-based university, had gone to a bar in Delhi with her three female friends. There, she is stated to have met some male acquaintances, one of whom was the accused.
The victim in her complaint to the Noida Police said she was intoxicated after drinking alcohol, and the accused was “getting closer to her.” They stayed at the bar till 3am and the accused kept asking her to come with him, she declared in her complaint to the police.
As a consequence of his forcibly insisting that she accompany him, the victim acceded to his urgings and went with him to his house “to rest.” She further alleged he kept touching her inappropriately on the way and instead of taking her to his place in Noida, he instead took her to a relative’s flat at Gurgaon, where he raped her.

INTOXICATED WOMAN
THE victim then approached the police, culminating in an FIR being lodged at a Noida police station. The accused was arrested on December 11, 2024. However, in his bail plea, the accused told the court that since the woman needed support due to her intoxicated state, she voluntarily agreed to go to his place for rest. He denied the allegation that he had taken her to his relative’s flat and raped her twice. He claimed it was not a case of rape, but of consensual sex — which is the standard defence of all rape accused.
This is where the courts must delve into the factual matrix of the case to separate the defence of the accused from the victim’s account. Few women will voluntarily accuse strangers of having raped them. In this instance, the accused and the victim were acquainted. Intoxication is a ground wherein the accused cannot say she voluntarily agreed to sex. Having sex with a woman when she is intoxicated or by deceiving her or putting her under fear of attacking her or her children is rape.
The court said the victim is a postgraduate student and was able to understand “the morality and significance of her act” as disclosed by her to the police. However, the court did not consider the fact that
“Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed,” it ordered.

WHAT IS CONSENT?
THE learned judge has failed to accept that intoxication does not mean consent, more so when the woman was so intoxicated that she did not understand the nature of what she was doing. Morality and immorality are subjective concepts that change from place to place within India and even outside India.
Delhi is the national capital, where women are more outgoing than their counterparts in Madras or Thiruvananthapuram. Women do visit bars and get intoxicated while studying for post-graduate courses in private universities. This does not automatically give a licence to their male classmates to rape them. We must remember that the definition of rape includes consent provided this consent has been obtained by force or by deception.
Another judgment of the Allahabad high court, dated March 19, 2025 delivered by Justice Ram Manohar Narayan Mishra, declared “grabbing the breast of a girl and breaking her pant string is not an attempt to rape, but an attempt to sexually molest.” The judgment came in the context of an incident in 2021 when an 11-year-old girl was attacked by two men in Kasganj area of Uttar Pradesh.
They grabbed her breast, broke the string of her salwar, and tried to push her under a bridge. Due to the timely intervention of pedestrians who witnessed the incident, the girl was rescued. The girl’s mother lodged an FIR, after which the accused approached the Allahabad high court for quashing the criminal complaint.
In his interpretation of this heinous incident, Justice Mishra called it “preparation for the crime” and not “an actual attempt” and said “we should understand the difference between the two.” By making such a distinction, he disregarded the vulnerability of the child and the impact of this act on her, and thus belittled such heinous acts of violence against children, in violation of Section 7 of the POCSO Act, under which “touching the sexual organs of a child or any act related to physical contact with sexual intentions will be considered sexual assault.”
Pedestrians stopped the heinous act of rape from taking place. If they had not intervened, the offence of rape would have taken place. The POCSO Act, enacted in 2012, defines any sexual act with a person under 18 as an offense, irrespective of consent or subsequent actions like marriage.
Some high courts have interpreted cases involving “consensual” relationships or post-offense marriages leniently, imposing conditions like marrying the victim. This contradicts the Supreme Court’s ruling in Independent Thought v. Union of India (2017), which invalidated exceptions allowing sexual intercourse with minors in marriage, raising the age of consent to 18 years.
The judgments of former Justice Pushpa Ganediwala, who was forced to resign after the 47th CJI Shard Bobde, was forced to recall his letter to the government confirming her as a puisne judge is worth recalling. This woman judge interpreted the POCSO Act to mean that there should have been “skin to skin” contact with a minor for the ingredients of the act to be attracted. The judgments of Judge Kshama Joshi who was the District Judge-1 of the Margao Sessions Court was also criticised for giving an elaborate account of the victim’s demeanour after alleged rape by the investigative journalist, Tarun Tejpal. The case has gone in appeal to the high court.