Merely being in love doesn’t count as consent for sex, rules Kerala high court

While hearing a petition of a rape convict, the Kerala high court said that merely being in love with someone cannot be presumed as the victim’s consent for sexual intercourse, according to news agency PTI.

In his order, Justice R Narayana Pisharadi said helplessness in the face of compulsion cannot be seen as one’s consent. He added that there is a massive difference between consent and submission, and every consent involves a submission but the converse does not follow.

“Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required for consent,” PTI reported, citing the court order.

The hearing was on an appeal by one Syam Sivan, 26, who was convicted and subsequently sentenced by a trial court under multiple sections of the IPC, including section 376 that deals with rape. According to the PTI report, the court in its order noted that in 2013, Syam took a girl – with whom he was in a relationship with — to Mysuru in Karnataka and had sexual intercourse with her without consent. It also noted that the convict sold all her gold ornaments, took her to Goa and then raped her again, saying he would commit suicide in front of her house if she didn’t go with him.

The court further stated that even if on certain occasions, the victim didn’t resist Syam, it cannot be considered as her consent for the sexual intercourse but only a “passive submission…under unavoidable circumstances” since she had “no other option.”

In its judgement, the Kerala high court, however, set aside the trial court’s conviction under the POCSO act handed out to the convict as the victim’s age could not be ascertained. However, the order of Justice Pisharadi said the accused’s act clearly comprises offences punishable under Section 366 and 376 of the IPC (Abduction and rape).

This judgement by the Kerala high court comes two days after the Supreme Court on Thursday set aside the Bombay high court’s controversial order, which stated skin-to-skin contact was necessary to punish individuals accused of sexually assaulting minors. The high court acquitted a man of sexual assault charges for no ‘skin-to-skin’ contact in the case of groping a 12-year-old child.

The apex court, however, said the most significant element to punish an accused under the POCSO Act is “sexual intent” and not “skin-to-skin” contact. It also ordered the accused to surrender within four weeks.