Illicit Intercourse within the meaning of Section 373 IPC

The Kerala High Court on August 8, 2011 in Sunny Vs. State, 2011 (3) KLT 885 : 2011 (3) KLJ 531 : ILR 2011 (3) Ker. 778 deals with a question whether the the ” illicit intercourse ” within the meaning of Section 373 of the Indian Penal Code should be for the purpose of “prostitution”.

See Also : Sexual Intercourse with a girl aged below 16 years

# Section 373 of the Indian Penal Code reads as follows:

“373. Buying minor for purposes of prostitution, etc.– Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine.

Explanation I.– Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.

Explanation II.– ” Illicit intercourse ” has the same meaning as in section 372.”

In Section 373 of the Indian Penal Code, the expressions “prostitution” and ” illicit intercourse ” occur. Explanation II to Section 373 states that ” illicit intercourse ” has the same meaning as in Section 372.

# Explanation II to section 372 defines ” illicit intercourse ” thus:

“Explanation II.– For the purposes of this section ” illicit intercourse ” means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi marital relation.”

Going by Explanation II to Section 372 of the Indian Penal Code, sexual intercourse between persons not united by marriage or by any union or tie constituting a quasi marital relation would amount to illicit intercourse. That definition is incorporated into Section 373 of the Indian Penal Code by the specific mention to that effect in Explanation II therein.

Section 373 of the Indian Penal Code applies where any person buys, hires or otherwise obtains possession of any person under the age of eighteen years. Such act should be with the intent that the person concerned (victim) shall at any age be employed or used for the purposes mentioned in the Section.

The purposes mentioned in the Section are:

(a) prostitution;

(b) illicit intercourse; or

(c) any unlawful and immoral purpose.

To attract Section 373 IPC, it is not always necessary that such intent must be established. It is sufficient if the offender knows it to be likely that such person (victim) will at any age be employed or used for any purpose mentioned in the Section.

The expressions “prostitution” and ” illicit intercourse ” are not used conjunctively in Section 373, but they are used disjunctively. The ” illicit intercourse ” within the meaning of Section 373 IPC need not be in the process of prostitution. Even in the absence of prostitution, an illicit intercourse would amount to an offence under Section 373 of the Indian Penal Code, provided the other essential conditions are satisfied.

The contention that unless the victim is employed for prostitution, the procurer is not guilty even if he had illicit intercourse with the victim, is absolutely unsustainable, going by the ingredients of Section 373 of the Indian Penal Code.

The contention put forward by the learned counsel that Explanation I to Section 373 would lend support to the contention that illicit intercourse must be for the purpose of prostitution, is also without substance.

Explanation I provides for a presumption that any prostitute or any person keeping or managing a brothel shall be presumed to have obtained possession of the female under the age of eighteen years with intent that she shall be used for the purpose of prostitution.

The presumption under Explanation I does not lead to the conclusion that ” illicit intercourse ” within the meaning of Section 373 should be in the process of or for the purpose of or as part of prostitution.

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