Kerala HC Division Bench: Brothel Customers Face Prosecution Under ITPA; Overrules Vijayakumar Line of Judgments
A Kerala High Court Division Bench has settled a decade-long split, holding that customers who visit brothels are criminally liable under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956.
On 11 August 2026, a Division Bench of the High Court of Kerala at Ernakulam comprising Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar answered an intra-court reference that had arisen from a direct conflict among several Single Judge decisions on a pointed question: can a person who visits a brothel as a customer and engages in sexual activity there be prosecuted under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (ITPA)? The Bench answered in the affirmative, holding that the interpretation in Mathew v. State of Kerala, Abhijit v. State of Kerala, and Sarath Chandran v. State of Kerala correctly states the law. Consequently, the contrary view expressed in Vijayakumar and others v. State of Kerala and others, Jith Joy v. State of Kerala, and decisions following the same line stands overruled.
The Dispute Before the Division Bench
The immediate cause was a quashing petition, Crl. M.C. No. 8613 of 2022, filed by the second accused in C.C. No. 2447 of 2015, pending before the Judicial First Class Magistrate Court-I, Njarackal, Ernakulam District. The criminal case arose from Crime No. 536/2010 registered at Munambam Police Station. The allegation was that the accused Nos. 1 to 5 were found indulging in sexual intercourse in a lodge managed by the sixth accused and another person. All five were charged under Sections 3, 4, and 5 of the ITPA.
The second accused, Noushad, approached the High Court seeking to quash the proceedings on the ground that he was merely a customer who did not fall within the purview of the Act. When the Single Judge considered that application on 21 January 2026, the conflict in judicial opinion was apparent. The Single Judge, being of the view that a larger bench should resolve the question, directed the Registry to place the matter before the Chief Justice. The Chief Justice then directed it to be heard by a Division Bench for an authoritative determination, giving rise to ICR (Crl.M.C.) No. 2 of 2026.
The Conflicting Single Judge Views
The Division Bench traced two distinct streams of authority within the Kerala High Court itself.
The first stream, represented by Vijayakumar (2016 (1) KHC 698) and Jith Joy v. State of Kerala (2020:KER:29802), took the position that the mere act of engaging in sexual activity in a brothel is not, by itself, an offence under the ITPA. On that reasoning, those benches had quashed proceedings against customers. A further Single Judge decision — reported at 2026 KHC 1625 — similarly held that a customer cannot be proceeded against under Sections 3 or 5 solely because he availed the services of a sex worker, so long as he had not procured, induced, or caused any person to carry on prostitution. The Andhra Pradesh High Court expressed the same view in Muppina Ram Suresh @ Rajesh v. State of Andhra Pradesh (Criminal Petition No. 4192 of 2022).
The second stream comprised three subsequent Single Judge decisions. In Mathew v. State of Kerala (2022 (7) KHC 515), the Single Judge held that the phrase “person with whom such prostitution is carried on” in Section 7(1) is wide enough to include a customer, making a customer liable if the brothel is within a notified area or within 200 metres of a public place listed in that provision. In Abhijit v. State of Kerala (2023 KHC Online 9425), another Single Judge examined the word “procure” in Section 5 and held that a customer who obtains or secures a sex worker for the purpose of prostitution also comes within Section 5. In Sarath Chandran v. State of Kerala (2025 KHC OnLine 956), yet another Single Judge went further, holding that the money paid by a customer constitutes an inducement within Section 5(1)(d), because that payment persuades the sex worker to offer her or his body and act in accordance with the customer's demands.
Statutory Scheme: Sections 5 and 7 of the ITPA
Section 5 of the ITPA punishes any person who procures, attempts to procure, induces, takes, attempts to take, causes to be taken, or causes or induces a person to carry on prostitution, with rigorous imprisonment of not less than three years and not more than seven years, extendable to fourteen years where the act is against the will of the victim. Where the victim is a child, the minimum rises to seven years and may extend to life.
Section 7(1) punishes any person — including the person with whom prostitution is carried on — who carries on prostitution in premises within a notified area or within 200 metres of a place of public religious worship, educational institution, hostel, hospital, nursing home, or other notified public place, with imprisonment of up to three months. Section 7(2) separately targets the keeper of a public place who knowingly permits prostitutes to resort to or remain there. The State Government's power to notify prohibited areas is contained in Section 7(3).
How the Division Bench Reasoned
The Bench began with the object of the ITPA: to combat commercial sexual exploitation, suppress trafficking for prostitution, and prevent the commercialisation of vice. It characterised a brothel not merely as a place where sexual activity takes place, but as a commercial establishment created and maintained for the systematic exploitation of persons for financial gain.
The Bench reasoned that a brothel's commercial activity is sustained by two indispensable components: the organiser who facilitates and profits from it, and the person who avails the services for consideration. The victim of this commercial arrangement is invariably the sex worker. If penal consequences are confined only to the brothel keeper or organiser — completely excluding the person whose demand fuels the activity — the legislative object of suppressing commercial sexual exploitation would stand substantially diluted.
Turning to the language of Section 7(1), the Bench endorsed the Mathew interpretation that the expression “person with whom such prostitution is carried on” is wide enough to include a customer visiting premises in a notified area. On Section 5, the Bench accepted the reasoning in Abhijit that “procure” in its ordinary sense — to obtain or secure a person for a particular purpose — is not confined to traffickers or intermediaries but can extend to a customer who obtains a sex worker for the purpose of prostitution. The Bench also accepted the Sarath Chandran reasoning that monetary payment by a customer constitutes the very inducement that persuades a sex worker to engage in prostitution, attracting Section 5(1)(d).
The Bench was direct in rejecting the narrow reading adopted in Vijayakumar and Jith Joy. It observed that the customer, by voluntarily entering a brothel and availing services for consideration, becomes an active participant in the commercial transaction. The commercial exploitation the Act prohibits is sustained not merely by the brothel keeper but also by those who knowingly patronise it. Accordingly, the Bench found no justification to immunise one of the essential participants in the prohibited activity from criminal liability where the statutory provisions, properly construed, bring such conduct within their ambit.
The Bench also noted the policy dimension: an interpretation that weakens the efficacy of a beneficial social legislation ought to be avoided when the language of the statute reasonably admits of a construction that advances its purpose.
Outcome
The Division Bench answered the reference by holding that the interpretation in Mathew, Abhijit, and Sarath Chandran lays down the correct legal position. The contrary view expressed in Vijayakumar, Jith Joy, and decisions following that line of reasoning was held not to state the law correctly and was expressly overruled. The reference in ICR (Crl.M.C.) No. 2 of 2026 was answered accordingly on 11 August 2026.
The matter will now return to the Single Judge bench dealing with Crl. M.C. No. 8613 of 2022 — the quashing petition filed by the second accused in C.C. No. 2447 of 2015 — for disposal in light of the Division Bench's authoritative answer.