“Surrender can never be construed as consent for Sexual Intercourse”, Kerala HC upholds conviction of 67 year old for rape of minor

    The Kerala High Court in Thankappan v. State of Kerala held that a woman’s resignation to sexual intercourse when caused by fear or duress cannot be termed as “consent”.

    In the present case, the accused raped a 14-year-old minor girl who is a Scheduled Caste for various days and subsequently impregnated her. Despite the complainant’s attempts to rebel , accused warned her against revealing the truth to everyone. In fear and terror , complainant did not disclose any information to her mother and sister.

    Accused through his counsel argued that the act was consensual and without any volition as complainant visited the house of accused as and when required and used to have intercourse with him.

    The court observed that, in situation of this nature, the actions of surrendering before the accused as and when required, on the part of victim girl cannot be called as abnormal and such surrender can never be construed as consensual acts of sexual intercourse.

    The trial court observed that the prosecution has failed to establish the case and that it 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.

    In deciding the appeal, Justice PB Suresh Kumar held that the consent in name of fear, terror or duress 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”

    The judgment further states that “The consent, on the part 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.”

    Quoting from the Convention on the Elimination of Violence Against Women , the judge notes that sexual assault has historically been manifestations of unequal power relations between men and women, which has led to the former’s domination over the latter. Thus, sexual assaults are crimes of gender inequality. Judge ruled.

    Since the accused was much older than her and being able to dominate the will of the victim, the Court dismissed the appeal filed by accused.