Customer in a brothel can be punished
A customer, who comes for engaging in sex in a brothel which is functioning in a notified as prohibited area, can be proceeded criminally and punished under Section 7 of the Immortal Traffic (prevention) Act, 1956 (IT Act), says Kerala High Court in Mathew v State of Kerala [ 2022(7) KHC 515].
Prostitution is sexual exploitation or abuse of persons for commercial purposes. Prostitution involves two persons: the person engages in prostitution and the person (the customer) with whom the prostitution is carried on. The latter is a person who exploits or abuses the prostitute, under Section 7(1) of the IT Act.
Section 7 notifies the prohibited areas
Prostitution under Section 7 of the act is prohibited in areas notified by the government under section 7(3) of the act, areas within a distance of 200 Meters from places of worship, educational institutions, hostels, hospitals, or nursing homes, and public places of any kind which are notified by the Commissioner of Police or Magistrate.
Brothel in this case was within 175 m of a temple
In this case, a brothel connected to the offence was run within 175 Meters of a temple by terming it as an Ayurvedic Hospital which conducts body massage by ladies called as nurses, who were found to have remained nude with the petitioner during search.
IT Act does not criminalise prostitution
The Immoral Traffic (prevention) Act, 1956 does not per se criminalises prostitution, but criminalises some of the connected activities and the act of prostitution in some specified areas, alone.
Section 3 to 7 of the act makes some activities an offence
The Section 3 of the act applies to a person who maintains a brothel and the person allowing the premises to be used as a brothel. The Section 4 applies to a person who lives on the earnings of prostitution and Section 5 deals with procurement or inducement for prostitution.
The Section 6 of the act deals with detaining of a person in the premises where prostitution is carried out. Section 7 makes prostitution in certain specified areas punishable.
Seducing and soliciting for the purpose of prostitution are punishable activities under Section 8 of the act.
Section 7 penalises two kinds of persons
Furthermore, the Section 7(1) penalises two types of persons: the person who carries on prostitution and the person with whom such prostitution is carried on, within the notified areas.
The person with whom the prostitute carries on prostitution is the person who exploits or abuses the prostitute. A customer in a brothel comes under this definition and hence is punishable.
Sexual activity in unnotified area is not offence
In Vijay Kumar and Others v State of Kerala and Others [ 2016 (1) KHC 698] it was held that engaging in sexual activity in a brothel is not made an offence under the IT Act. But there is no doubt about the fact that in areas notified under Section 7 of the IT Act, prostitution is punishable. Therefore the appellant in this case has been declared an offender who need to be proceeded with criminally.
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