Moral inquiry distorts the adjudication of rape

Rape justice in India hinges more on technical grounds and moral audits than on consent and sexual autonomy

Rape adjudication in India now revolves around various factors, often making the law seem less important. In February 2026, the Chhattisgarh High Court held that ejaculation without penetration did not meet the statutory definition of rape under Section 375 of the Indian Penal Code (IPC). While the ruling is foregrounded in the sine qua non status of penetration, the facts recorded were stark. The accused forcibly undressed the victim, tied her up, rubbed his genitals against hers and ejaculated. The conduct was evidently violent, non-consensual, and deeply invasive, yet the conviction was scaled down to an attempt because penetration couldn’t be established.

This case exposes a structural problem larger than the verdict itself. At its core, what rape trials require is a disciplined inquiry based on two determinants: first, whether the assailant’s act satisfies the statutory requirements of the offence, and second, whether consent as defined by law was obtained. This is simply the task. Yet rape adjudication across Indian courtrooms often disregards the law or, worse, wanders into inquiries of moral conjecture.

Section 63 of the Bharatiya Nyaya Sanhita replicates its IPC counterpart, which was overhauled after the 2013 amendment inspired by the Justice Verma Committee Report (‘The Committee Report’). This reform project was a deliberate attempt to shift rape laws from antiquated notions of ideal victimhood towards bodily autonomy and integrity. Yet in practice, courts often err on this framework.

While criminal law necessitates a certain degree of precision to define offences, when these definitions shield the assailants from justice, we must inspect whether the intended purpose of the law is being served. Peno-vaginal penetration is sufficient to establish rape, but not necessary, per the textual definition of rape. The Chattisgarh verdict instantiates the difficulty when it is treated as the sole marker of the offence. This judicial pattern appears across cases where, despite the assailant's coercive and violent conduct, courts rule out rape unless penetration is conclusively established. This confinement to strict technical grounds without any reading of broader contexts makes the letter of the law indifferent to survivors' lived realities.

The striking aspect in such verdicts is not the sole emphasis on penetration but the minimal consideration given to consent. In this case, where a woman was coercively overpowered, undressed, and forcibly tied up, the lack of consent becomes obviously self-evident. Yet at the heart of the judicial reasoning lies a glaring oversight of the violation of individual autonomy.

The Committee Report carefully curated consent as the heart of rape as defined under Section 375. Furthermore, it achieved a two-fold expansion – the ambit of rape in IPC to include forcible oral sex as well as any kind of touching of the vagina. This exemplifies the fact that the Report was trying to move away from the antiquated notions of what was conceived as sex (peno-vaginal penetration). However, courts continue to hyper-fixate on penetration, ignoring the text of a provision that was conceptually expanded to recognise bodily dignity and autonomy.

The larger threat that emerges from patterns of rape adjudication is that while navigating these technical elements, courts often tread into unnecessary terrain when examining the complainant’s conduct. In many cases, they delve into moral inquiries on previous relationships with the accused, the survivors’ sexual history, concerns of ‘promiscuity’, or the lack of resistance from the survivors. These questions are rooted in the Madonna-whore dichotomy: women perceived as virtuous are ‘ideal victims’ whereas their sexually active or socially independent counterparts are treated with suspicion. The Committee Report underscored that these stereotypes should not influence judicial decision-making. While the statutory definition of consent does not recognise such distinctions, the stereotypes around sexuality subtly influence credibility assessments of the survivors.

A coloured lens of judgment

The discourse does not end here, but gets compounded when cases involving allegations of rape on the pretext of marriage are dealt with. The moral discomfort in discussing sexuality often overshadows the conversation on consent; courts end up commenting on women’s sexuality and the immorality of certain kinds of sex rather than focusing on the grave violations of sexual autonomy at hand. Justice Nagarathna’s recent remark on this subject, while hearing such a matter, exemplifies this issue. She cautioned young adults against indulging in physical relationships before marriage, as no one can be trusted before marriage. She also questioned the unmarried woman alleging rape as to why she had travelled to the country where the accused lived and engaged in sexual activity with him.

Whatever the intent, this episode illustrates the inherent biases and stereotypes attached to sexuality, premarital sex in this case, which evidently influences the outcomes of cases. Furthermore, the evidence statute states that a person’s prior sexual experience is irrelevant to the question of consent or the quality of it. Courts seemingly ignore this textual mandate when hearing matters relating to sexual assault.

Notably, while Justice Nagarathna’s observation exposes the stigma surrounding sex outside of marriage, the irony is amplified because non-consensual sex within marriage is still not fully recognised as rape, except in limited circumstances. This is because marital rape is not criminalised in India; doctrinally, it is still treated as an exception to rape. Thus, simply put, sexual autonomy outside marriage is scrutinised, while inside marriage it is often stripped of recognition. And again, moral conjecture dethrones voluntary consent as the heart of judicial reasoning.

Rape adjudication should stick to the law, focus on consent, and not engage in a moral audit of survivors. Until this happens, survivors will be robbed of the justice envisioned for them in the 2013 amendments.

(Jwalika is a research fellow, and Mandar is an associate fellow at the Vidhi Centre for Legal Policy)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.