Kochi: The High Court, which granted anticipatory bail to Kerala MLA Rahul Mamkootathil in the rape and forced abortion case registered at Nemom police station, has observed that the relationship between Mamkootathil and the survivor had her consent. Judge Kausar Edappagath remarked that 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 Judge recorded in the order. 

The order also recalled instances when the Supreme Court expressed serious concern over the trend of invoking rape laws to criminalise the breakdown of consensual relationships. According to the order, the Supreme Court has condemned the practice of converting every soured

relationship into an allegation of rape, cautioning against the misuse of the criminal justice system for personal grievances.

The court placed reliance on the WhatsApp chats between the survivor and Mamkootathil and observed that the abortion was done with the woman's consent. The court noted that the transcripts of the chats showed that the survivor had consented to terminate the pregnancy and that she had requested tablets for abortion, shared her location and received the medicine from Mamkootathil's friend. 

The HC also noted that other crimes against Mamkootathil were registered after the Nemom police filed the case. According to the court, it cannot be treated as criminal antecedents. "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. That apart, it is settled that criminal antecedents are not a bar to grant pre-arrest bail to an accused if he is otherwise entitled to it," the order said.

When the prosecution submitted that Mamkootathil's mobile phone has to be recovered and examined, for which custodial interrogation is necessary, the Judge said that Mamkootathil can be directed to produce his phone before the invesigating officer.

The court accepted the defence argument that the relationship was consensual. The survivor said in her complaint that Mamkootathil subjected her to forceful sexual assault without consent on four to five occasions on April 22, 2025 and then compelled her to consume tablets to terminate the pregnancy. The court, however, said that in the last week of May 2025, she voluntarily visited Mamkootathil's flat and stayed there for two days. 

"She claims that she went to his flat despite being mentally disturbed after the incident on April 22, 2025. It appears improbable that the survivor, having suffered such a brutal assault, would willingly visit and stay at Mamkootathil's residence within a month. She further alleges that another act of forceful sexual assault occurred during that stay, yet she continued to remain in the flat for two days without asserting that she attempted to leave but was restrained. This conduct prima facie suggests the existence of a consensual sexual relationship, though the matter requires final adjudication at trial," the order noted.