Not every instance of consensual sex in failed relationship can be treated as rape, notes Kerala HC in Palakkad MLA rape case

NOt every instance of consensual sexual social intercourse in a failed human relationship tin be characterised as dishonour, the Kerala heights court observed on Thursday, while granting anticipatory bail to Palakkad MLA Rahul Mamkootathil in a rape and forced abortion case against him. The court directed Mamkootathil to remain under custody for the purpose of further investigation into the matter.36-year-old Mamkootathil, expelled from the Congress last year, is accused of sexually assaulting a married woman multiple times at his rented flat in Palakkad and once at her rented apartment in Thiruvananthapuram, causing physical injuries, recording obscene visuals and coercing her to terminate her pregnancy. It was the first of three similar cases registered against him.The complainant, who is living separately from her husband due to marital discord, has stated before the police that she began an intimate relationship with the accused in January 2025 after he began sending messages through social media. However, she alleged that he sexually assaulted her for the first time in April 2025 after knowing that she was pregnant and weak, as well as threatened to commit suicide if she did not consume the pills he gave her for termination of pregnancy. However, the counsel for the accused stated that the allegations reflect at the most “only a consensual relationship between two adults” and that the complainant consumed the abortion pills voluntarily.After hearing both sides, the bench of Justice Kauser Edappagath noted that it was difficult to believe that the complainant would invite the accused to her apartment and subsequently travel to his flat in Palakkad unless she was willing to engage in a physical relationship.“The absence of any contemporaneous complaint on these occasions reinforces this inference. Moreover the WhatsApp chats between the applicant and the complainant, as well as between the 3rd respondent and the 2nd accused reveal an intense personal relationship and do not indicate any element of coercion or force. Taken together, these circumstances point towards the likelihood of consensual sexual intercourse on 22/4/2025 and again in the last week of May, 2025,” the court noted.It added: “Not every instance of consensual sexual intercourse in a failed relationship can be characterised as rape. Where two adults voluntarily consent to engage in sexual relations and continue such activity over a prolonged period, it can only be construed as an act of mutual choice or promiscuity, not as sexual assault by one partner against the other.”The high court underlined the Supreme Court’s earlier rulings where it condemned the practice of “converting every soured relationship into an allegation of rape, cautioning against the misuse of the criminal justice system for personal grievances.”However, it was further said that the lack of moral virtues in an accused person cannot be the criterion for determining the legality of any issue before the court of law. “Law and morality are not equivalent to each other,” the court said.The court also noted that the transcripts of the WhatsApp chats between the complainant and the accused appeared to indicate that the complainant ultimately consented to terminate her pregnancy even though the pills were supplied by the accused.“Whether such consent was vitiated by force, coercion or undue influence as alleged by the respondent is a matter to be established through evidence during trial,” the court said. Referring to the WhatsApp chats, the court revealed that the complainant had requested the tablets for abortion, shared her location and received the medicine from the accused, suggesting that the woman voluntarily consumed the pills.It noted that for attracting a case under Section 89 (causing miscarriage without woman’s consent) of the Bharatiya Nyaya Sanhita (BNS), the act must have occurred without her consent.The pre-bail arrest was granted to MLA on several conditions, including directing him to surrender his passport, not leave Kerala, appear before the investigating officer on February 16, barring him from contacting the complainant and witnesses.