RECENT DEVELOPMENTS IN PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT - The Daily Guardian
Connect with us

Legally Speaking

RECENT DEVELOPMENTS IN PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Kashish Gupta & Lipika Dhingra

Published

on

INTRODUCTION

As per WHO (World Health Organisation) a child is defined as – “a child is a person 19 years or younger unless national law defines a person to be an adult at an earlier age. However, in these guidelines when a person falls into the 10 to 19 age category they are referred to as an adolescent[ ]”. It means that any person who is below the age of 19 years or below is termed as a child. But the person whose age is between 10-19 years is termed as an “adolescent” whereas a child whose age is below 1 year is termed as an “infant”. But in POCSO Act, 2012 a child defined as – “any person below the age of eighteen years[ ]”.

Before the POCSO Act, 2012, there was no specific statue for protection of children from sexual offences in our country and prior to it the child abuse was prosecuted under the Indian Penal Code, 1860, like section 375 for rape; section 354 for outraging the modesty of women; Section 377 for unnatural offences; etc. There was only drawback that it does not provide for absolute protection of children. But the Goa was the only state who had a specific act named as “Goa Children’s Act, 2003” to protect the children of Goa from child abuse before the POCSO came into force.

On the fourteenth day of November of 2012, which is usually read as 14th November, 2012, the Protection of Children from Sexual Offences Act came into force. It is formerly known as POCSO Act, 2012. It emerged as the specific act which deals with the protection of children from sexual offences like sexual assault, pornography, sexual harassment, etc. It provides the provision for special and speedy trial courts where the child victims of any such offence is brought up to file the complaint. It also has the provision for child-friendly court where investigation, evidence, cross-examination, etc. is done to ensure the justice. The child-friendly court can be understood as the court room is an informal room with colourful walls, stickers, small toys and informal attire. It is done so as the child shouldn’t have the fear in mind that where is he or she been taken?, what will happen? why these witness boxes are kept and all such questions.

POCSO ACT OF 2012 – ESSENTIAL FEATURES AND SCOPE

The POCSO Act of the year 2012 is a multidimensional act as it provides various reliefs to victims of children who have suffered from the various sexual offences like sexual assault, rape, child harassment, child pornography, etc. It has a very wide scope as it covers a great number of offences under the one act. Following are the aspects which are covered under the POCSO Act, 2012 –

• It recognizes the various types of penetration apart from penile-vaginal penetration like penetrative sexual assault[ ], sexual assault[ ], sexual harassment, child pornography, aggravated penetrative sexual assault/aggravated sexual assault which means that when some officer rank personnel like police officer, member of armed forces or any civil servant commits sexual assault upon children.

• A Child Welfare Committee (CWC) is established under POCSO.

• Under Juvenile Justice (Care and Protection of Children) Act of 2015 a child after being the victim of such offence is called as “child in need of care and protection”.

• It is mandatory for the police to report to CWC about any such offence committed with 24 hours.

• It has made the provision for the hospitals and doctors also to safeguard the interest of the child while getting the statement recorded. It also provides for a provision under section 27 (2) and (3)[ ], that if a victim is girl child then it is mandatory that her examination shall be done by a female doctor only in presence of her parents or any person on which she shows here trust or confidence respectively.

• CWC also helps to arrange the psychologist or counseling sessions for the child to remove her from the stress and fear, and helps to get the statement recorded which helps to file the complaint.

• It has also made the regulative provisions for media to control the spread of news and fake news so that the image of the child won’t get defamed in the future.

• Under this act the helpline number to report such offences are also established which is called as CHILDLINE and its number is 1089.

• It ensures that child won’t feel embarrassed, shy or afraid while getting the complaint registered. So, it provides the special provisions for child-friendly courts. Section 28(3)[ ] of the act deals with these special courts.

• This act is unbiased in the sense that it is for the protection of girl and boy child. It can also be termed as “gender-neutral”.

• This act also declared the abetment of sexual offences as punishable. It means that if someone insists or promotes a child to do some offence will be punished.

NEED OF AMENDMENT

As per the report of year 2016 of National Crime Record Bureau 2016, a great number of cases where crime against women, crime again children and juvenile in conflict with law were observed[ ]. Later the Union Women and Child Development Minister gave a report stating that the number of crimes against women and children are increasing which is a need to worry. So, it suggested making amendments in the POCSO Act, 2012, and making the punishments stricter, so, that no person can cause any type of a sexual abuse to the children of our country.

CHANGES MADE TO THE ACT

Under the amendment, it has increased the punishment for each offence mentioned. They have also increased the punishment for aggravated sexual penetration assault; it could also be death penalty. They have also screwed up the provisions to control child pornography. The act has also deleted the words “communal or sectarian violence” for which earlier there was a punishment[ ]. It basically means causing sexual abuse to a child in respect to his religion or community. But in the words “communal or sectarian violence” were replaced with violence during any natural calamity or in similar situations.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES, 2020

[ ]Under the light of powers mentioned in the Section 45 of the Protection of Children from Sexual Offences Act, 2012 (formerly known as POCSO Act, 2012) the government has made a new set of rules vide notification number G.S.R. 165(E) dated March 09th, 2020, in the official gazette and it will be called as “Protection of Children from Sexual Offences Rules, 2020”.

Under these new rules the government has made more stringent (strict) punishments to the accused so that they won’t repeat it in the future. Some noticeable additions in the new rules can be observed as :

• the mandatory police verification of each and every person and place where children come like schools, academies, sports centers, care homes or day care centers, etc is required after regular intervals.

• various vocational courses and training programs should be made available for the police officials and forensic experts, so, that they become more expertise in their respective fields.

• making age-appropriate educational material the part of their curriculum, to teach them safety measures, control emotions, etc.

• the governments have also been asked to formulate “zero-tolerance” protection principle in case of child sexual abuse.

• procedure to report for material used for sexual abuse like pornography.

• spreading the knowledge of age-appropriate child rights among other people.

To trace the child pornography the rules laid that any person who has received, sent, stored or distributed or is about to send, forward, circulate or viral it, the information of such person shall be reported to the Special Juvenile Police Unit (SJPU) or on cybercrime portal. The link to cybercrime portal is https://cybercrime.gov.in/. It was also mentioned that the details of the device where such content is stored, or forwarded or is being received shall be available to trace the person easily.

RELEVANT CASE LAWS

• Independent Thought v/s Union of India & Anr.[ ]

It is one of the leading NGO which deals with the child rights & had a PIL before the Supreme Court of India, challenging the constitutional validity of exception 2 to Section 375 of the Indian Penal Code which reads as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The Supreme Court through its verdict held that it criminalized the sexual intercourse with a minor wife whose age lies between 15 and 18 years. The Court also added that the exception 2 in section 375 is violation of Articles 14, 15 and 21 of the Indian Constitution which allows intrusive sexual intercourse with a girl who is below 18 and above 15 years on the ground of marriage. Such exception clause in Indian rape laws negates the very purpose of Prohibition of Child Marriage Act, it violates the provisions mentioned in the Protection of Children from Sexual Offences Act (POCSO) in context of the age of consent and some other international conventions to which India is a signatory. In this landmark verdict, Supreme Court has struck down section 375, exception 2 of the Indian Penal Code. Now, the law cannot protect a man who is engaged in sexual relations with his wife where she is between 15 and 18 years because irrespective of the status of a child whether married or not, she will always remain a child[ ].

• Tuka Ram & Anr v/s State of Maharashtra[ ]

It is commonly known as Mathura Case. In this case, a young tribal girl whose name was Mathura was allegedly raped by two policemen while she was in custody at Desai Gunj Police Station in Maharashtra. It was the incident of custodial rape that took place on March 26th, 1972. Sessions Court passed the judgment in favor of defendants saying that Mathura gave her consent voluntary as she was habitual to sexual intercourse and held them not guilty. The Sessions Judge conveyed that there was a major difference between “sexual intercourse” and “rape”. The court added that it was a case of sexual intercourse in which she had consent and is not rape. Later the appeal was filed in the Bombay High Court had a look at all the findings analysed during the trial in Sessions Court. On the ground of such observations, the court held that the defendants were guilty of rape and the consent given was not voluntary and it was due to serious threats by policemen. Later, the case went to the Supreme Court, where court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the person of the girl, there were no signs of any struggle, any resistance, also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape[ ].

CONCLUSION

The POCSO Act, 2012, provides a very wide scope for protection of children from various sexual abuse offences like rape, child pornography, child harassment, etc. This act is gender neutral which is one of its key features that it is not meant only girls or boys. It does not care whether you are a normal citizen or civil servant; it has same punishment for all. Its only aim is to provide justice nothing else. And with the time it is being getting evolved which is making it better. Like each and everything needs evolution to become better, same is with the law as well. In our country we use to worship girls as goddess at one side and at other side are commencing sexual offences. It can be like – “how we are seeing others daughters, the same way they might also be seeing our daughters in the same way”.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Verbal cruelty in marriage

Pinky Anand

Published

on

Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

Continue Reading

Legally Speaking

‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

Published

on

The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

Continue Reading

Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

Published

on

The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

Continue Reading

Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

Published

on

On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

Continue Reading

Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

Published

on

The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

Continue Reading

Legally Speaking

GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

Published

on

The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

Continue Reading

Trending