Using any part of woman’s body to mimic penetrative sexual act is rape, rules Kerala HC

Widening the confines of the law against rape, the Kerala High Court made a landmark judgement on Wednesday, stating that the act of an accused rubbing his penis against the victim's thighs will amount to rape. The court ruled that if an act, though non-penetrative, provides sexual gratification to the accused similar to that of penetrative sex, it will be held as rape under the Indian Penal Code.

A bench of Justices K Vinod Chandran and Ziyad Rahman AA was hearing a criminal plea filed by a man convicted for raping a minor. The accused had asked the court to examine whether his attempt to penetrate the gap between the child's thighs can constitute rape. 

The counsel for the accused contended that the man inserted his genitals between the victim's thighs and that such an act would not attract the offence of rape, as defined under Section 375. 

However, the Kerala High Court noted that the law on rape has been amended through the years to widen the scope of its definition, and the same also includes penetration of any part of a woman's body. In this case, the act of manipulating a minor's body to simulate penetration also serves as a wider interpretation of rape, the court said. 

About the rape case

The 2015 case pertains to the repeated sexual assault of an 11-year-old girl in Kerala's Ernakulam district. The victim and her mother went to a government medical camp in Thirumarady after she complained of stomach pain. During the medical examination, the child revealed that a neighbour had previously sexually assaulted her. 

The doctor advised the mother to file a police complaint, but she postponed it fearing society. However, after inquiries from Childline officials, the woman filed a complaint. An FIR was registered against the accused neighbour and he was arrested.

The man was booked under various sections of the POCSO Act (Protection of Children from Sexual Offences Act), including aggravated sexual assault and sexual harassment, and also under sections of the Indian Penal Code, including rape. 

In her statement, the minor survivor revealed “multiple instances of sexual assaults such as making her hold the genitals of the accused till he ejaculated, showing obscene pictures, attempting to put his penis into the victim's mouth, sexual acts between her thighs followed by ejaculation, etc. She also revealed that the accused man, who was known to their family, coerced her into staying silent."

The accused was found guilty by a lower court in Kerala and was sentenced to life imprisonment for the rest of his life and fined.