Establishment Of Brothel Itself Unlawful Commercial Venture; Customer Not Immunised From Criminal Liability: Kerala High Court
The Kerala High Court was considering the issue of criminal liability of a customer who visits a brothel.
While observing that establishment of a brothel is itself an unlawful commercial venture, the Kerala High Court has held that there is no justification to immunise one of the essential participants, i.e. the customer, from criminal liability.
The High Court was considering a petition involving the issue of whether a customer who visits a brothel for sexual activity can be implicated as an accused under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956.
The Division Bench of Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar held, “The establishment of a brothel is itself an unlawful commercial venture intended to solicit persons willing to purchase sexual services. The very existence of such an establishment is dependent upon those who respond to that solicitation. The customer, by voluntarily entering the brothel and availing the services of a sex worker for consideration, becomes an active participant in the commercial transaction. The commercial exploitation sought to be prohibited by the Act is therefore sustained not merely by the brothel keeper but also by those who knowingly patronise it. In such circumstances, we find no justification to immunise one of the essential participants in the prohibited activity from criminal liability, if the statutory provisions, properly construed, bring such conduct within their ambit.”
M/S. P.A. Mujeeb represented the Petitioner while Public Prosecutor represented the Respondent.
Factual Background
It was alleged that the accused persons were found indulging in sexual intercourse in a lodge managed by one of the accused persons. The accused were charged for the offence punishable under Sections 3, 4 and 5 of the Act. The contention of the petitioner (second accused) was that the offences charged against him were not attracted as he was only a customer who did not fall within the purview of the Act.
The matter emanated from divergent views expressed by the Single Judges of the High Court. A Single Judge, by an order dated January 21, 2026, while considering the application filed by the second accused seeking to quash the proceedings on the file of the Judicial First Class Magistrate Court-I, Njarackal, noticed the conflict in judicial opinion on the issue. Being of the view that the question required consideration by a larger Bench, the Single Judge directed the Registry to place the Criminal Miscellaneous Case before the Chief Justice for appropriate orders. Pursuant thereto, the Chief Justice directed the Registry to place the matter before the Division Bench for an authoritative determination of the issue.
In Vijayakumar and others v. State of Kerala and others (2016), a Single Judge of the Court held that the act of engaging oneself in a sexual activity in a brothel is not an offence. However, in Mathew v. State of Kerala (2022), Abhijit v. State of Kerala (2023) and Sarath Chandran v. State of Kerala (2025), the Single Judges held that a customer who visits a brothel for indulging in sexual activity is also covered under the provisions of the Act.
Reasoning
Referring to the provisions of the Immoral Traffic (Prevention) Act, 1956 (ITPA), the Bench explained that the same is a social welfare legislation enacted to combat commercial sexual exploitation, suppress trafficking in persons for the purpose of prostitution, and prevent the commercialisation of vice.
“The activities carried on in a brothel constitute commercial sexual exploitation. Such exploitation is sustained by two indispensable components, namely, the organiser who facilitates and profits from the activity, 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 while completely excluding the person whose demand fuels the commercial activity, the legislative object of suppressing commercial sexual exploitation would stand substantially diluted. 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”, it stated.
The Bench thus held that a customer, by voluntarily entering the brothel and availing the services of a sex worker for consideration, becomes an active participant in the commercial transaction.
“...we are of the considered view that the interpretation adopted in Mathew (supra), Abhijit (supra) and Sarath Chandran (supra) lays down the correct legal position. Consequently, the contrary view expressed in Vijayakumar (supra), Jith Joy (supra) and the other decisions following the same line of reasoning does not, in our respectful opinion, state the law correctly and stands overruled”, it clarified.
Cause Title: Noushad v. State of Kerala (Case No.: ICR (CRL.MC) NO. 2 OF 2026)
Appearance
Petitioner: M/S. P.A. Mujeeb, Advocates Reshma R., Roshni Philomina, T.A., Athira Uthaman, Nandagopan M.C
Respondent: Public Prosecutor