Repeated Physical Intimacy Doesn't Necessarily Establish Consent; Courts Must Examine Coercion And Deception: Madras High Court

Rejecting the argument of the appellant that he had a consensual relationship with the complainant woman, the bench of Justice Anand Venkatesh and Justice KK Ramakrishnan observed that mere non-resistance by the woman will not be construed as voluntary consent. The court added that the mere fact that the victim was subjected to repeated physical intimacy with the accused would not establish a consensual relationship.

“Where the evidence demonstrates that the victim remained with the accused or submitted to the sexual act because she was unable to extricate herself from his control, threats, or coercive circumstances, such conduct amounts to no more than passive submission or helpless resignation. Mere non-resistance or acquiescence under such circumstances cannot, in law, be construed as voluntary consent. Therefore, the mere fact that the victim was subjected to repeated physical intimacy with the accused does not, by itself, establish that the relationship was consensual,” the court said.

The court thus noted that to establish a consensual relationship, the court had to look into the surrounding circumstances in which the acts occurred, the absence of free and informed choice, and the existence of coercion, deception, or intimidation.

The court added that while examining consent, the court had to determine whether the victim was aware of the true intentions of the accused and had voluntarily chosen to engage in the sexual relationship with the complete knowledge of all material facts. The court added that when the materials disclose that the relationship was induced by fraudulent representations, vitiating the victim's free choice.

“Our constitutional and legal framework unequivocally recognizes every individual & bodily autonomy and sexual autonomy. Any physical relationship must be founded upon the free, voluntary, informed consent, and unequivocal consent of the person concerned. A physical act performed without such consent attracts the penal consequences contemplated under the criminal law,” the court observed.

The court was hearing an appeal filed by Suji @ Kasi against the order of the Fast Track Mahila Court, Nagercoil, by which he was convicted and sentenced to life imprisonment until natural death. As per the prosecution, Kasi was initially arrested in connection with another crime. During the course of the investigation, his laptop was recovered, which contained obscene photographs and videos of several women, including the complainant in the present case. Following this, the case was transferred to the CB-CID.

Meanwhile, the complainant in the present case lodged the complaint with the CB-CID and a separate case was registered. After trial, the court found him guilty of offences under Sections 376(2)(n), 417, 354(A), 294(b), 354(c) of the IPC and Section 66E of the Information Technology Act.

At the time of appeal, Kasi argued that he had a consensual relationship with the victim, who allowed the recording of the photographs and videos. He thus argued that the offences alleged would not be attracted.

Countering this submission, the State argued that Kasi had approached the victim in the pretext of friendship, won her trust by inducing her to believe that he intended to marry her and also that he would secure employment for her. The State submitted that after gaining the victim's confidence, the accused developed a relationship with her, captured her intimate photographs and videos and threatened to circulate the same, thus compelling her to submit to repeated sexual intercourse.

The court observed that in matters involving romantic fraud, the court had to examine whether the consent was as a consequence of deception, coercion, intimidation, abuse of confidence or fraudulent inducement and not merely guided by the relationship between the parties.

On going through the materials, the court observed that in the present case, the victim was threatened with publicising her intimate images on social media and among family members, friends, or colleagues. The court noted that the victim was compelled to subject herself to sexual acts under such fear and intimidation. Thus, the court held that the consent was not a product of free and voluntary choice but was secured through deception.

Thus, noting that there was a complete absence of free, voluntary and informed consent in the present case, the court rejected the argument of the appellant.

Though other technical points were also raised by the appellant, the court observed that the same would not vitiate the trial. Thus, noting that there was no mitigating circumstances to interfere with the order of the trial court, the court dismissed the appeal and upheld the conviction and sentence.

Counsel for Petitioner: Mr. V. Kathirvelu Senior Counsel

Counsel for Respondents: Mr. G. Karuppasamy Pandian Counsel for State of TN (Crl.Side)

Case Title: Suji @ Kasi v The State

Citation: 2026 LiveLaw (Mad) 316

Case No: Crl.A(MD).No.644 of 2023