Woman's sexual history can't be reason to absolve rape accused: Kerala HC

Kochi: A woman or girl being of easy virtue or habituated to sexual intercourse cannot be reasons to absolve someone of rape, especially a father who is expected to be the "fortress and refuge" of his daughter, the Kerala High Court has said convicting a man for repeatedly raping his daughter which also resulted in her becoming pregnant.

The high court noted that when a father rapes his daughter, it was worse than a gamekeeper becoming a poacher or a treasury guard becoming a robber.

The observations by Justice R Narayana Pisharadi came after the victim's father claimed that he was being falsely implicated in the case as his daughter has admitted that she had sexual relations with another person.

Rejecting his claims of innocence, the high court further said that DNA analysis of the baby, born in May 2013 as a result of the sexual assault, reveals that the victim's father was the biological father of the infant also.

The high court said, "Even in a case where it is shown that the victim is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. Even assuming that the victim 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 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 victim 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 more graver and 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.

"Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber."

In the instant case, the high court also noted that due to the rape committed by her father, the victim delivered a male child and therefore, the sufferings endured by her "would be beyond imagination".

"In such circumstances, the accused is not entitled to any leniency in the matter of punishment," it added.

The high court while convicting the man for rape and sentencing him to 12 years in jail, set aside the trial court's decision to sentence him to 14 years imprisonment under the Protection of Children from Sexual Offence (POCSO) Act on the ground that the prosecution was unable to prove the victim was a minor when the rapes occurred between June 2012-January 2013.

The high court also set aside the man's conviction and sentence for criminal intimidation of the victim, saying the prosecution has not proved that she was being threatened with dire consequences by her father.