S.377 IPC Contemplates Unnatural Acts Against The Order Of Nature, Does Not Cover Unnaturality Of Relationship Such As Incest: Kerala HC
The Kerala High Court has held that having carnal intercourse against 'the order of nature' mentioned in Section 377 of the Indian Penal Code looks only into the nature of the act and not the relationship of the parties involved.
A Division Bench of Justice Raja Vijayaraghavan V. and Justice G. Girish was hearing an appeal where the appellant was convicted of raping his daughter by the Sessions Court.
Among other offences, the accused was also convicted of having sexual intercourse against the order of nature under Section 377 of IPC. The Court observed that merely because the accused is the father of the victim, the offence under Section 377 is not attracted.
The Court observed:
“However, what Section 377 IPC contemplates is the vulgarity and un-naturality in the act of sexual intercourse which could be termed as carnal and against the order of nature, and not in respect of the un-naturality due to the relationship of the person indulging in the said act. Therefore, the mere fact that the appellant/ accused herein is the father of the survivor, does not bring the incestual sex perpetrated by him upon her daughter within the purview of Section 377 IPC.
The Court said that the statement of the victim that the appellant used to indulge in intercourse from front and back does not bring out anything regarding anal intercourse. The Court noted that the medical examination certificate also did not mention any injury which would confirm intercourse against the order of nature. The Court acquitted the appellant of charges under Section 377 IPC.
In the case, the appellant was accused of raping his minor daughter from Standard IV to VIII. The matter was reported to the police when the victim talked about it to her teacher who saw her crying in the class.
The appellant is alleged to have raped his daughter and sexually assaulted her in a gruesome manner. He did this when victim's mother was out of the house for work. Initially the victim did not understand the nature of the act as she was too young.
When later, she told her father that she would tell her mother about this, he threatened that he would kill her mother and sister if she told this to her. When she resisted his acts, he tried to smother her with a pillow while holding her neck.
The court relied on the statement given by the victim and T upheld the conviction of rape under Section 375 of I.P.C. He was given a sentence of life imprisonment and was directed to pay Rs. 1,00,000 as fine which would be given as compensation to the victim.
Counsel for the Appellant: Advocates Jithin Babu A., Arun Samuel, S. K. Adhithyan, Anood Jalal K. J.
Counsel for the Respondent: Special Government Pleader Adv. Ambika Devi, Senior Public Prosecutor Alex M. Thombra
Case No: Crl. A. No. 813/ 2018
Case Title: Shaji M. v State of Kerala
Citation: 2024 LiveLaw (Ker) 519