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In a notable observation, the Kerala High Court stated that the sexual history of a rape survivor is not a reason to absolve a rape accused of his offence. The observation by Justice R Narayana Pisharadi came while considering the plea of a man from Wayanad, accused of sexually abusing his own daughter, who also got pregnant as a result.
The court said that even in a case where a woman is sexually active, "it may not be a ground to absolve the accused from the charge of rape." It added, "Even assuming that the survivor is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of. It is the accused who is on trial and not the victim.
The court made these observations on October 11, while sentencing the accused to 12 years in jail. The 2013 case pertains to a crime that took place in Kerala’s Wayanad district. The accused sexually abused his daughter. According to the prosecution, she was 16 years old and studying in class nine when the abuse happened. However, the court said that because the prosecution had failed to prove her age, the accused could not be charged under the Protection of Children from Sexual Offences (POCSO) Act, which led to the subject of consent. However, the court observed, “One cannot even imagine that the victim girl consented to have sexual intercourse with her father. There is a gulf of difference between consent and submission. Every consent involves submission, but the converse does not follow. Helplessness in the face of inevitable compulsion clouded by fear cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required to constitute.”
According to the survivor, the accused also threatened to kill her if she disclosed the abuse to anyone. The crime came to light when the survivor got pregnant. She subsequently gave birth to a baby.
While challenging a lower court's order which convicted the man, the accused had stated that the survivor, during the time of the abuse, allegedly was in a 'sexual relationship' with another man. It is against this argument the court made its observation.
Rejecting the accused's claims of innocence, the court further said that DNA analysis of the baby, born as a result of the sexual abuse, reveals that the survivor's father was the biological father of the infant also. The High Court further said that the father "was duty bound to provide the victim girl protection and support." "But he perpetrated sexual assault and rape on her. One cannot even imagine the trauma the survivor would have suffered. The indelible imprint which the incestuous act has left in her mind cannot be ignored. She may feel the mental agony and pain for years to come," it said.
The High Court also observed that "There can never be graver and more heinous crime than the father committing rape on his own daughter. The protector then becomes the predator. The father is the fortress and refuge of his daughter.”
In the instant case, the High Court also noted that due to the rape committed by her father, the victim had to deliver an infant, and therefore, the suffering endured by her "would be beyond imagination."
The court also added that the accused is not entitled to any leniency in the matter of punishment and sentenced the accused for rigorous imprisonment of 12 years.
(With PTI inputs)
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