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HomeCRIMESurrender does not mean consent for sex - Kerala High Court

Surrender does not mean consent for sex – Kerala High Court

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In a judgement with far reaching consequences the Kerala High Court bench comprising of Justice PB Suresh Kumar observed that, a woman’s resignation to sexual intercourse due to fear or duress cannot be termed as “consent” in the eyes of law.

Making it fairly clear that surrender cannot be construed as consent for sexual intercourse, the Kerala High Court bench upheld the conviction of 67-year-old accused allegedly raped a minor 14-year-old Scheduled Caste girl on a number of occasion and impregnated her.

The complainant who allegedly was of the age as the 67 year old accused’s granddaughter used to regularly visit their home to watch television. One day the accused sent his granddaughter to the market and taking advantage of the fact that they were alone at home forcibly had a sexual intercourse with the minor girl. When the complainant tried to yell, the accused warned her not to reveal his actions to anyone.

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This led to a series of incidents where the accused continued to have intercourse with the girl on several occasions which she silently suffered out of fear that he might harm her mother and sister.

The accused’s his counsel argued that the act was consensual because “she used to go to the house of the accused as and when desired or required by the accused and had sex with him.”

After hearing both sides the trial court observed that the prosecution failed to establish that the case falls under the definition of ‘rape’ as described under Section 375 of IPC, and held the accused guilty under Section 376 of the Indian Penal Code.

However the High Court observed, “In a situation of this nature, according to me, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.”

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Justice PB Suresh Kumar
Justice PB Suresh Kumar

“In a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual,” Justice PB Suresh Kumar observed.

Justice Kumar held that consent in the face of fear, duress, or compulsion could not be termed as ‘lawful consent.’ He said:”… mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law…”

Taking stock of the facts of the case, Justice Kumar concluded that there was no evidence to prove “consent” by the accused and the accused had forced himself upon her in the first instance. Similarly rebutting the contention that the subsequent acts of intercourse being consensual, Justice Kumar said, “Insofar as it is established that the first instance of sexual intercourse spoken to by the victim girl was not consensual, it is immaterial as to whether the subsequent instances of sexual intercourse was consensual.”

The accused was older and able to dominate the will of the complainant being a “fatherly figure”, the Kerala High Court observed.

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“The victim girl was under a social and psychological hierarchical threat. In a situation of this nature, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.”

Consent, of a woman “as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

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Taazakhabar News Bureau
Taazakhabar News Bureau
Taazakhabar News Bureau is a team of seasoned journalists led by Neeraj Mahajan. Trusted by millions readers worldwide.

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