SYAM SIVAN V. STATE OF KERALA & ANR.

In today’s scenario, though India by the virtue of being a democratic country continues to
allow its citizens to make their own decisions in exercise of their Fundamental Rights
enshrined in the Constitution. However, a lot of misuse of some of these liberties has been
witnessed over the years, especially from juveniles, (i.e, individuals under the age of 18
years.) The most prominent of them all being misinterpreting the consent of a girl to indulge
into a sexual act. Non-consensual sexual activity is not only violative of law, but also the
personal space of a person.

Being in a relationship with someone can make you feel a plethora of emotions and
sometimes, it does get confusing when it comes to the question of intimacy and sex. It can be
hard to decipher how the other person feels or whether he/she too wants to indulge into your
desired activity. Thus, to clear the air in such scenarios, consent serves to be of utmost
importance. In basic sense, ‘consent’ is when one person gives permission to another person
to do something, i.e, agreeing to an action based on your knowledge of what that action
contains; its possible consequences and having the option of saying no.

The present case of Siyam Sivan v. State of Kerala & Anr. is one such case which exemplifies
the importance of ‘consent’ in a sexual activity, putting a full stop to all presumptions of
being in love to be synonymous to consent for sexual intercourse observing:

“There is gulf of difference between consent and submission. Every consent involves a
submission but the converse does not follow. Helplessness in the face of inevitable
compulsion cannot be considered to be consent as understood in law. Exercise of intelligence
based on the knowledge of the significance and the moral effect of the act is required for
consent.”

FACTS OF THE CASE

In the present case, a 17-year old aged girl victim was in love with the accused boy. He works
as a cleaner in a bus in which she used to travel frequently. The boy induced her to come with
him to Mysore with the promise of getting married. They resided together for someday.
During their stay the boy committed forcible sexual intercourse with the victim girl. After a
week, they returned back home. In the meantime father of the victim lodged in the Adoor
Police Station under Section 57 of the Kerala Police Act, for 'missing of woman'.

Upon her return, she was produced before the Police Station by her father where she
disclosed that she was sexually assaulted by the accused. After the initial investigation of the
case, filed a report in the court for deleting Section 57 of the Kerala Police Act from the F.I.R
and for incorporating the offences under Sections 366A and 376 of the I.P.C and Section 7
read with Section 8 of the POCSO Act.

Following an investigation, an FIR was immediately registered and a charge sheet was filed
against the accused. The trial court found him guilty and sentences him to rigorous
imprisonment for 10 years. As such, he approached the High Court with an appeal. The
appellant took the plea of juvenility claiming that he was a minor at the time of committing
the offence. However, the accused approached the High Court and took the plea of Juvenility.
Thus, the HC while hearing the case laid down the following relevant findings:

1. Plea of Juvenility:

Learned counsel for the appellant submitted that the appellant/accused was a minor at
the time of commission of the offences alleged against him. Learned counsel for the
appellant submitted that it was an omission to raise the plea of minority before the
trial court.

The HC bench found out while going through the school documents of the accused
that he was a minor while he committed such crime thus, this case has to be dealt by
Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 as it is
the authority to deal juvenile cases. Thus, the sentence passed by Trail is void and
thus set aside by the HC bench.

2. Prosectrix’s Testimony

When victim girl was examined before the trial court, she was aged 21 years. In her
testimony she explained all the incidents occurred before and after they eloped to
Mysore with the accused.
 The HC bench here established out that there has been no reason to discredit the
evidence of victim girl further the court stated that there is no rule of law where it is
said that the testimony has to be corroborative in material thus, no corroboration is
needed.

3. No proof of consent

Lastly, the HC bench said that there was no proof of consent ,and stated that even
though there were no marks of resistance on the body of victim it will still be
considered as rape. Thus, the accused is liable for the punishment.

Absence of injuries on the person of the prosecutrix does not lead to an inference of
consent on her part or falsity of the allegation. It cannot be said that whenever
resistance is offered there must be some injury on the body of the victim.

However, because the accused has gone through the punishment of 6 years being a
juvenile he was realized on custody but was sentenced under section 366 of IPC for
kidnapping, abduction and inducement. The sentences of imprisonment and fine
imposed on the accused by the trial court were set aside. The accused was directed to
be released from custody forthwith if he is not required to be detained in connection
with any other case. Accordingly, the appeal was partly allowed.

Conclusively, the case of Syam Sivan v. State of Kerala can be termed as a landmark case
amidst all the legal issues surrounding consent in sexual intercourse. This distinction between
consent and submission by the Court was much needed as it is generally assumed in our
society that if the victim didn’t fight hard enough to show wounds, she must have been
willing. This distinction between consent and submission was much needed as it is generally
assumed in our society that if the victim didn’t fight hard enough to show wounds, she must
have been willing.