Public outrage erupted after the recent Allahabad High Court judgment where the court held that pulling the drawstring of a woman’s pyjama and pressing her breast does not amount to attempt to rape. For many citizens, especially women, this sounded absurd, insensitive, and disconnected from ground realities.
But shockingly — this is not the first such judgment. Courts in 2017 (Karnataka High Court) and 2021 (Bombay High Court, Nagpur Bench) have delivered similar views.
So the question is unavoidable:
Why do Indian courts still hesitate to call such acts “attempt to rape”?
Let’s break this down with law, judicial reasoning, and a critical lens.
The Controversy: When Sexual Violence Is Not ‘Attempt to Rape’
The Allahabad High Court ruling is not an isolated mistake. It is rooted in a long-standing judicial doctrine:
Attempt to rape requires an act that moves directly towards penetration. Mere touching, groping, or undressing — however forceful or humiliating — is not enough.
This doctrine has created a disturbing gap between the lived experience of women and the technical definitions used by courts.
📚 Two Cases That Show This Is a Pattern
1️⃣ Raju v. State of Karnataka (2017)
Citation: 2017 SCC OnLine Kar 818
Accused removed some clothing and touched private parts.
Court: Not attempt to rape. Only sexual assault/molestation because there was no imminent move toward penetration.
2️⃣ Satish v. State of Maharashtra (2021, Nagpur Bench)
Citation: 2021 SCC OnLine Bom 138
Accused pressed the breast of a minor girl over her clothes.
Court: Not even “sexual assault” under POCSO because “no skin-to-skin contact.” (This reasoning was later overturned by the Supreme Court.)
These cases expose one thing clearly:
⚠️ Courts consistently under-classify non-penetrative sexual aggression.
How the Law Actually Defines These Offences
To understand why courts decide this way, we must see what the law says.
1️⃣ Sexual Harassment
Defined under: BNS, 2023 – Section 74 (old IPC 354A); POSH Act, 2013 (workplace)
It includes:
- Sexually coloured remarks
- Demanding sexual favours
- Showing pornography
- Unwelcome physical contact of less serious nature
- Verbal, text-based, and gesture-based abuse
Key point: No physical sexual force.
2️⃣ Sexual Assault
Defined under: BNS, 2023 – Section 75 (old IPC 354); POCSO Section 7 (for minors)
Acts covered:
- Pressing breast
- Touching private parts
- Groping
- Pulling clothes with sexual intent
- Forcibly kissing
- Dragging a woman with sexual intent
Key point: Physical contact + sexual intent, but no step toward penetration. This is why courts classify many acts as “sexual assault/malestation.”
3️⃣ Attempt to Rape
Defined under: BNS, 2023 – Section 63(2) (old IPC 376 r/w 511)
Courts look for:
- A direct and immediate act toward penetration
- An act that would have resulted in rape if not stopped
- Removing clothes in a manner showing intent to penetrate
- Positioning oneself for penetration
Key point: Courts apply the “imminent penetration test.” If penetration is not about to happen, judges avoid calling it “attempt.”
4️⃣ Rape
Defined under: BNS, 2023 – Section 63 (old IPC 375)
What counts: Penetration of vagina/mouth/anus with body part or object, even slight penetration, without consent.
Why Courts Don’t Call It Attempt to Rape
1️⃣ Law sets a very high threshold for “attempt to rape”
Under Bharatiya Nyaya Sanhita (BNS), Section 63(2) (old IPC 376/511): to prove attempt to rape, prosecution must show:
- Clear intent to penetrate
- An immediate action that would have resulted in penetration
- The act was so close to completion that stopping it prevented rape
In simple terms: The offender must be about to penetrate — not just sexually assaulting or violating.
2️⃣ Acts like groping or pulling clothes don’t meet this “immediacy” test
Because courts follow an old doctrinal principle:
“Preparation vs Attempt” Doctrine
Preparation = planning, sexual advances, groping, undressing
Attempt = when the act can only logically lead to penetration unless interrupted
Courts look for the “last proximate step.” Thus, for courts:
- Groping = sexual assault
- Breast squeezing = sexual assault
- Pulling clothes = sexual assault
- Even forcibly dragging a woman = still not attempt (if penetration is not imminent)
This strict test is why judgments often appear insensitive to victims.
Judges often argue that pulling drawstrings may show sexual intent, but not intent to penetrate; pressing breasts does not show the man was in immediate readiness to commit rape.
3️⃣ Judicial fear of “over-criminalisation”
Courts sometimes hesitate because they assume intent to rape cannot be inferred unless conduct directly indicates penetration, and they fear convictions will be overturned if they stretch definitions. This creates a gap: the law demands “imminent penetration,” but real-life sexual violence rarely unfolds in perfectly clear stages.
Critical Analysis: Why This Logic Fails Women
1️⃣ It ignores the realities of sexual violence
Acts like pulling a woman’s pyjama strings, forcefully touching her breasts, dragging her, or groping with force are not isolated “minor acts” — they are part of the continuum of sexual violence that often escalates to rape. Yet courts isolate these actions as if they exist in a vacuum.
2️⃣ It reduces a woman’s experience to “technical stages” of rape
Indian courts still treat rape like a mechanical event:
Stage 1: Touching — Stage 2: Undressing — Stage 3: Rape
But real incidents don’t follow neat sequences. A man who pulls clothes and gropes is expressing sexual dominance and intent to violate.
3️⃣ It reflects a judicial mindset shaped by outdated definitions
The root problem is structural: rape is defined by penetration; attempt to rape is defined by imminent penetration. Everything else is pushed into the “lesser” bucket of molestation or sexual assault. This narrow view dilutes justice.
Supreme Court’s Strong Criticism of the Allahabad High Court Order
The Supreme Court further observed that the judgment appeared legally improper and socially dangerous. Because the case was still at the summons stage, the Supreme Court:
- Took suo motu cognizance
- Overruled the Allahabad High Court order
- Issued notices to: Allahabad High Court, Government of Uttar Pradesh, and Union of India
While overruling the order, the Supreme Court made the following observations:-
“We are in pain to say that it shows a total lack of sensitivity on the part of the author of the judgment. It was not even spur-of-the-moment and was delivered 4 months after reserving the same, which shows there was application of the mind. It's a serious matter — total insensitiveness on the part of the judge.”
🧭 Conclusion: The Law Must Catch Up With Reality
Judges are bound by strict legal definitions. But courts must interpret these definitions with social sensitivity and an understanding of sexual violence, not with mechanical detachment.
What women experience as assault, terror, and sexual aggression, the law often downgrades to “molestation.” India urgently needs:
- Clearer definitions of attempt to rape
- More gender-sensitive judicial training
- Recognition that non-penetrative sexual violence is a serious violation of bodily autonomy
Until then, judgments like these will continue to shake public trust — and rightly so.
The debate around how courts classify sexual offences reveals one clear truth: in today’s India, a woman’s bodily autonomy and sense of safety cannot be reduced to narrow legal stages or technical definitions. Justice must reflect lived realities, not outdated frameworks.
As courts increasingly face public scrutiny for insensitive interpretations, the future of sexual-offence jurisprudence must shift toward dignity, intent, and the continuum of violence — not just the moment of penetration.
Pausing here for today — I’ll be back with another critical legal development shaping India’s justice system.
Have thoughts on this issue? Share them in the comments — your voice matters in this conversation.
– Anupama
Stay informed. Stay empowered.
Written by: Anupama Singh | Legal Blogger
The Legal Trifecta: IPR | Cyber Law | Property Law
#AttemptToRapeLaw #AllahabadHC #SupremeCourtIndia #BNS2023 #SexualAssaultLaw #IndianJudiciary #LegalAnalysis #WomenSafety #CriminalLawIndia #JudicialReform
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