Kerala HC grants anticipatory bail to expelled Cong MLA in first sexual assault case

The Kerala High Court on Thursday granted anticipatory bail to expelled Congress MLA Rahul Mamkootathil in a case of rape and forced abortion against him, saying that the prosecution has been unable to show his custodial interrogation was necessary. While granting the relief to the Palakkad MLA, Justice Kauser Edappagath said that the conduct of the complainant in the case ''prima facie suggests the existence of a consensual sexual relationship'' between her and Mamkootathil, but it requires final adjudication at trial. The High Court said that it was ''difficult to believe'' that the complainant, being a married and mature woman, would invite the MLA to her apartment and subsequently travel to Palakkad to stay with him ''unless she was willing to engage in a physical relationship''. ''The absence of any contemporaneous complaint on these occasions reinforces this inference,'' it said. The High Court also noted that the Whatsapp chats of Mamkootathil and the complainant as well as between her and the MLA's friend -- the second accused in the case -- ''reveal an intense personal relationship and do not indicate any element of coercion or force''. ''Not every instance of consensual sexual intercourse in a failed relationship can be characterised as rape. Where two adults voluntarily consent to engage in sexual relations and continue such activity over a prolonged period, it can only be construed as an act of mutual choice or promiscuity, not as sexual assault by one partner against the other. ''The Supreme Court has expressed serious concern over the recent trend of invoking rape laws to criminalise the breakdown of consensual relationships,'' the High Court added. Regarding the allegations of forced abortion against the MLA, the High Court noted that as per the Whatsapp chats between the complainant and the second accused, she ultimately consented to terminate her pregnancy. It said that the Whatsapp chats also revealed that the complainant herself requested the tablets for abortion, shared her location and received the medicine from the second accused. The High Court said that these circumstances prima facie suggest that the woman voluntarily consumed the pills and for section 89 (causing miscarriage without woman's consent) of the Bharatiya Nyaya Sanhita to be attracted, the act must have occurred without her consent. ''Whether such consent was vitiated by force, coercion, or undue influence as alleged by the 3rd respondent (complainant) is a matter to be established through evidence during trial,'' it said. The prosecution had opposed the anticipatory bail plea on several grounds including that he was allegedly in the habit of committing sexual assault against women through the same modus operandi, and the three FIRs filed against him would substantiate the same. However, the High Court said that the moral virtues or the lack of them in a person accused of an offence cannot be the criterion for determining the legality of any issue raised against him before a court of law. ''Law and morality are not equivalent to each other,'' it added. The High Court granted him anticipatory bail subject to several conditions, which included that he appear before the investigating officer on February 16, surrender his mobile phone(s) and undergo interrogation for next three days from 10 am to 4 pm, daily, if required. The High Court further directed that Mamkootathil shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation, including to undergo medical examination or potency test. It said that if the investigating officer intends to arrest the MLA, then he shall be released on bail on executing a bond for Rs one lakh with two solvent sureties each for the like sum. Mamkootathtil was also directed to fully cooperate with the investigation, appear before the investigating officer between 10 am and 11 am every second Saturday until further orders and also as and when required by the investigating officer. The MLA was further directed not to contact the complainant or any other prosecution witness, not to tamper with evidence, not leave the state of Kerala without permission of the trial court and to surrender his passport. The order came on his plea challenging a Thiruvananthapuram Sessions Court decision denying him anticipatory bail in the case. Mamkootathil had been protected from arrest in the case since December 6, 2025. It was the first case of sexual assault registered against the Palakkad MLA who is an accused in two other similar cases. While he was able to get protection from arrest in two of the three cases, he was arrested in the third and spent over two weeks in custody before being granted regular bail.