Law provides protection to children against sexual offences

               Sexual abuse can happen to children of any race, religion or culture. It  is a fact that millions of girls and boys are being abused sexually abused worldwide within homes and outside. They are abused by families and known persons. The perpetrator exploits the child’s vulnerability to gain sexual gratification. It involves mental, physical and emotional abuse of a child. Children are unable to resist, so this crime is getting spread worldwide. One of the form of sexual abuse in India is the child marriage which is most prevalent in villages. According to National Crime Records Bureau, number of rapes is increasing day by day as against the children. Crimes against children like kidnapping, procuring minor girls and rape have doubled. The average age of sexual abuse is around nine years.

Protection of children under Indian Penal Code and other Laws:  Section 375 defines rape. Section 376 of IPC provides punishment for the rape which shall not be less than seven years and may extend upto ten years. When the girl is under twelve years ,the punishment is greater. Section 377 is generally invoked when boy children are sexually abused. Outraging the modesty of a women or girl is dealt with section 354. Obscenity and Pornography are dealt under the Young Persons Act 1956. A young person means a person under the age of twenty years. Under section 6 of Information Technology Act 2000, publication and transmission of pornography through the internet is an offence.

            Although these offences dealt with IPC but there are shortcomings in this law. These sections do not include the common forms of child sexual abuse nor their impact on children. Section 375 does not treat forced sexual intercourse by a husband against wife under fifteen years as an offence. Sexual assault on children should be made a specific offence requiring stringent punishment. There is no provision to deal with the trauma of the child. The recording of the statement of child victims need a special provision in CrPC. There are several cases pending in the courts as the trial goes on for years. Some girls have become adults by the time the final judgement comes through.

New law in this context: The Protection of children from sexual offences Act 2012 is a good hope for such offences. This Act has been drafted to strengthen the legal provisions for the protection of children. For the first time, special law has been passed to address the issue of sexual offences against children. This law provides protection to all children under the age of 18 years from sexual assault, sexual harassment and pornography.

                 The Act provides stringent punishments. An offence is treated as “aggravated “ when committed by a person in a position of trust or authority of child such as member of security forces, police officer and public servant also. It also intends to protects the child through all stages of judicial process and gives paramount importance to the principle of “best interest of the child”. The main offences covered by this Act are:

-Penetrative and aggravated penetrative sexual assault,

-Sexual and aggravated sexual assault,

-Sexual harassment and

-Using a child for pornographic purposes.

               Any person below the age of 18 years is defined as a ‘child’. A person commits ‘sexual harassment’ if he uses words or shows body to a child with sexual intent and shows pornography to a child. A person commits ‘penetrative sexual assault ‘ if he penetrates his penis makes a child to do so. Santhosa v. State[i]..Ravi (victim‟s father) lodged the complaint on stating that his daughter went to school and did not return thereafter. On enquiry, he got to know that accused has kidnapped her.Offences made under Section 376 read with Section 34 of IPC and also under Sections 3 and 4 of the POCSO Act were added in the case.Court looked into the material placed on record and held that as on the date of the alleged incident, she was at the age of 13 years. Therefore, the contention of the learned Counsel for the petitioner that there was a free volition of girl and both the petitioner and the victim girl married each other with their free will was rejected by the Court.

              "Aggravated penetrative sexual assault’ is committed by a police officer, member of  armed forces or a public servant, staff of private hospital,protection home,observation home,remand home or other 

place of custody or care and protection. In Saint Shree Asharam Bapu V. State of Rajasthan.[ii].the prosecutrix was a student of Gurukul. Saint Asharam convicted for Sexual and aggravated sexual assault along with other sections. A person commits  ‘sexual assault’ if he touches the vagina, penis anus or breast of a child with sexual intent.

              Section 4 gives punishment for penetrative sexual assault i.e. imprisonment for seven years which may extend to imprisonment for life and also impose fine. In Sunil Mahadev Patel V. The state of Maharashtra.[iii].  accused is prosecuted for the offences punishment under section 376,363,366A of IPC and Section 3,4,5 and 6 of POSCO Act 2012. The age of prosecutrix is 15 years old although she was having an affair with the accused but she got the benefit of her age under this Act. Section 6 provides punishment for aggravated penetrative assault for ten years or life imprisonment or for fine. Section 8 provide punishment for sexual assault for a term of three years which may extend to five years imprisonment or fine. In Chandrasekhar V. State by Ceb..  [iv]the father was alleged guilty of sexually molesting her minor daughter.

              Section 12 gives punishment for sexual harassment with imprisonment which may extend to three years and fine. If a child is used for pornography purpose in any media shall be guilty of offence under section 13 and he shall be punished for five years imprisonment or fine. If a person store a pornographic material involving child, he shall be punished with imprisonment of three years or fine or both. Any person abetting an offence against a child shall be punished with half year imprisonment or fine or both.

Offences need to be reported: Any person who is scared about such offences are likely to be committed may report to the Special Juvenile Police Unit or the Local Police. When the noted person satisfied that the child need protection, he shall make immediate arrangements for their protection and they shall with in 24 hours report the matter to the Child Welfare Committee and the Special Court. 

               It is also the obligation of media to report such crimes to the Special Juvenile Police Unit or the Local Police failure of which is accountable to punishment of one year or fine under section 21. Such reporting should be fair and no media is allowed to present comments on any child in any form. They are not allowed to disclose the name, identity, and address, photograph family details or school etc.in public unless and until the reasons were recorded in writing before the Special Court.

            Statement of a child shall be recorded at their residence and in the presence of a woman police officer not below the rank of Sub-Inspector. No child shall be detained in the police station in the night for any  reason. Section 25 provides that if the Magistrate records the statement, he records all the words spoken by the child and in the presence of the parents or the person they trust. For this purpose, Magistrate and police officer may take the help of any interpreter if necessary. Recording should be made by audio-video electronic means. Same method and care to be followed in case of medical examination.

Provision of Special Courts and Special Public Prosecutor: The State Government for the purposes of speedy trial constitutes in districts the Special Courts. The Special Courts has jurisdiction to try an offence under CrPC and Information Technology Act 2000, alongwith POSCO Act 2012. The State Government may appoint a Special Public Prosecutor for every Special Court for conducting cases. Saint Shree Asharam Bapu V. State of Rajasthan.[v].Noticing the necessityof speedy trial, Court directs the trial court to proceed with this case  and decide the issue whether cognizance is to be taken against the accused or not and if so, for what offences ? The trial court shall without any interruption and hindrance proceed with the trial on day to day basis till its conclusion so that the speedy trial is ensured.”Where any offence under this Act is committed by child he/she shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children Act 2000).

 Recording evidence with due care: Evidence of the child shall be recorded within 30 days of the Special Court taking cognizance of the offence. The Special Courts make ensure that the child is not exposed in any way to the accused at any time of recording the evidence and accused not to hear the statement of the child. The court may record the statement through video conferencing or by utilizing single visible mirrors or curtains or any other device. Trials are to be conducted in cameras and in the presence of the parents or any person of trust and confidence. The family and guardian shall be entitled to the assistance of a legal counsel of their own choice.

                Child Welfare Committee (CWC) plays a vital role under the POSCO ACT, cases registered under this Act need to be reported to the CWC within 24 hours and it should appoint a person to support the child. The State Commission for Protection Of Child Rights (SCPCR) has given responsibility of monitoring the implementation of the provisions of POSCO Act 2012.

Strong provisions, weak implementation: This special law to protect children from offences of sexual assault, sexual harassment and pornography, remains an unimplemented law, unknown to most and beyond the reach of those who need to apply it. POCSO enjoining the Central and State governments to take measures for giving wide publicity through the media — television, radio and print — and imparting periodic training to all stakeholders on the matters relating to implementation of POCSO’s provisions, the Act is relatively unknown. In the infamous Apna Ghar Rohtak shelter home case of May 2012, where over 100 inmates were allegedly subjected to sexual abuse, the POCSO provisions have reportedly still not been invoked against the accused.

Suggestions for better working of the Act: The Act looks into a support system for children through a friendly atmosphere in the criminal justice. Although the Act is made for the full protection of children, there is less awareness in the society of the Act. In most of cases people deny the existence of child abuse. The perpetrators in many cases are mostly people known to the children. Children are not aware of what inappropriate behavior means, they don’t even know that they being abused. Since talking about sex is taboo in our society, the victims end up feeling guilty and don’t even tell anybody. Hence, the country failed to protect the child. So in order to make children safe in our country, there should be sex education and a mechanism should be created for them to feel safe to report cases. Public awareness program should be conducted. Recently cabinet has suggested to reduce the age of consent for sex to 16 years. There is a fear that this would end up taking away safeguards available to victims under this Act. So the age should extend to teenagers especially in case of girls.

           As Karnataka ranks top among the 10 states in sexual offences in India, police officers from Dakshina Kannada district were educated on sexual offences and its medico-legal importance.

            According to the new guidelines set by the apex court after Nirbhaya rape [vi]incident in New Delhi, every district should have a 'rape crisis cell'. The cell should be immediately notified when an FIR in relation to a sexual assault is made. The cell must provide legal assistance to the victim under one roof.

At the end, I would like to say,

“CHILDREN ARE LIKE WET CEMENT,WHATEVER FALLS ON THEM MAKES AN IMPRESSION. SO PUT GOOD IMPRESSIONS ON THEM,GIVE THEM BETTER LIFE”.

 

                                                                                COMPLIED BY:

                                                                                VANITA BANSAL(ADVOCATE)

                                                                                B.A.LL.B

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[i] Santhosa v. State

[ii] Saint Shree Asharam Bapu V. State of Rajasthan.

[iii] Sunil Mahadev Patil vs The State Of Maharashtra

[iv] Chandrasekhar V. State by Ceb.. 

[v] Saint Shree Asharam Bapu V. State of Rajasthan.

[vi] Nirbhaya rape

Legal Protection of Women against Domestic Violence

                   Violence against women is a centuries old phenomenon. The violence may be of different forms, like child marriage, witch hunting, honor killing etc. It is due to defiance of the stereotyped role model of daughter, sister, wife and mother and of course daughter-in-law. Domestic Violence has been justified throughout the ages; legal and cultural traditions have granted men permission to beat their wives and even to kill them with intend to subordinate women. Although efforts had been made to electrify the image of women by associating her with Goddess Durga. Yet, it is ironical that India became patriarchal or male- oriented society. Causes of domestic violence may be many like alchohal and drug related, dowry related, frustration due to unemployment and financial constraints. Women also continue in violence relationship due to economic dependence upon men, family and social pressure to keep the family intact and preserve the marriage, lack of parental support absence of faith in the law and fear of losing custody of children.

                   In the modern age, voices have been raised against these inhuman practices and efforts made to bring about change by creating awareness, by educating people through legal actions. It was Raja Ram Mohan Roy who led the movement for women’s rights. He was responsible to bring social changes like stopping child marriage, sati and legitimization of widow remarriage. Though the term domestic violence was not in vogue in those reforms, their aim was to make women’s life more humane and protected.

Laws available to women against domestic Violence: Till 1983, there were no specific law pertaining to violence. Husbands could be convicted for murder, abetment to suicide, causing hurt and wrongful confinement. In section 304 of IPC, where the death of a woman is caused by burns or bodily injuries or occurs due to reasons other than normal circumstances within 7 years of her marriage and if it is find that the wife is subjected to cruelty by her husband or his relatives ,the death is termed as DOWRY DEATH. Section 313-316 IPC .says that forcing a wife to terminate her pregnancy also forms domestic violence. Section 306 is available to punish relatives for abetment of suicide. The Dowry Prohibition Act 1986, also available as putting ban on the practice of dowry. Throwing acid has been made punishable under the amendmets of IPC.

Newly formed Law for protection of women; In 1992,lawyers collectively drafted and circulated a Bill on domestic violence. It was widely circulated among women’s groups including the National Commission for women, but by this time, most of women’s groups wanted a law on domestic violence. Drafted in accordance with the UN framework, this Bill had the great support of the women. Thus, Indian Government introduced a Bill on domestic violence in Lok Sabha titled as ‘The protection of women from Domestic Violence Bill 2001’. Great deliberations were going on and great need was felt to such legislation in effect. The Act was passed by Parliament and assented to by the President. It was named as ‘The Protection Of Women Against Domestic Violence Act 2006”. It was the first significant attempt to recognize domestic abuse as a punishable offence to extend its provisions to those in live in relationships, and to provide for emergency relief for the victim.

              Section 2 provides protection against act, conduct, omission and commission that harms or has the potential to harm, will be considered as ‘Domestic Violence’. This legislation has widened the scope of domestic violence and now it can be broadly related to human rights. The definition contains physical, mental , economical and sexual violence suffered by large section of women and entitles them to claim protection from the courts. Section 494 of IPC has been proved insufficient for women protection, hence this Act was enacted for effective protection of rights of women guaranteed by Constitution i.e. Equality. Definition of ‘AGGRIEVED PERSON’ is equally wide which not only covers the legally wedded wife but also woman who is the sexual partner of the male, the daughter, mother, sister, child widow or any women residing in the house of the respondent.

               Relationship in the nature of marriage provides remedy to those women whose marriages may be void or invalid in the eyes of law and protection of women who are live- in-relationships. In Aruna Parmod Shah v.UOI  [i]long periods of cohabitation between a men and women raise a presumption of marriage.

             The concept of shared household means a household where the aggrieved person lives or had lived in a domestic relationship either singly or along with respondent and includes a household owned or rented. Granting supremacy to the rights of residence of women ,the Delhi High Court held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken or rented by the husband. Supreme Court  judgement on SR Batra V. Taruna  Batra constitutes rights of a wife to live in husband’s house. This is most important judgement since even today there is lot of misunderstandings about rights of women on their husbands/in-laws property/house. It was held right is available to a woman only against her husband and not against  in-laws. Mother-in-laws house does not become shared house. It only meant house owned or rented by husband only.

              There are various reliefs that be granted under this ACT . The magistrate if satisfied that the domestic violence has taken place, can pass the protection order in favor of the aggrieved person and prohibit the respondent from committing any violence. Such order would be in operation till the aggrieved person applies for discharge and the order can also be altered, modified and revoked. One of the most important feature of the Act is that women’s right to secure housing. This right is secured by a residence order passed by court. The Act provides that if an abused woman requires, she has to be provided an alternate accommodation and her maintenance has to be paid by her husband or partner.

The right of a divorced woman to residence in the shared house would depend on the terms and conditions of the divorce order as held in B.R.Achala V. S appi Reddy and Ors. [ii]

               Under section 20 , a woman can claim maintenance or monetary relief  to meet the expenses incurred. It may include loss of earnings, medical expenses and loss of property. Such relief should be adequate , fair and reasonable  and according to the standard of living . She can claim the compensation for the injuries including mental torture and emotional distress caused by violent acts.In Rajesh kurre V. Safurabhai and Ors. [iii]the court is competent to award maintenance to the aggrieved person and child of that person according to section 20. And they do not require to establish the case under section 125 of CRPC. Section 21, provides the magistrate can give the custody of the child /children to the aggrieved person and if necessary make arrangements for visit of such child/children by the respondent.

            A woman has the right to the services and assistance of the protection officer and service providers arranged under the provisions of the law. She will have the right to the services of the police, shelter homes and medical establishments. She also has the right to file her complaint under section 494 of IPC along with this Act.

            An application under section 12 can be filed before the Magistrate directly. An application can be filed by any aggrieved person and against the adult male against whom the aggrieved has sought relief. There is an exception that an aggrieved wife or female living in relationships in the nature of marriage can file a complaint against a relative of the husband or partner.  The Act is controversial on the point whether a female can be made respondent or not. The Supreme Court in Sandhya Manoj Wankade V. Manoj Bhimrao Wankade [iv]held that female relative can also be made respondent. An application can be filed in the Court of Judicial Magistrate of the first class or the Metropolitan Magistrate within the local limits of which , the aggrieved person resides or carries on business, the respondent resides or carries on business or the cause of action has arisen. A Domestic Incident Report (DIR) should be made in the prescribed from on the receipt of domestic violence from an aggrieved person. The Magistrate takes into consideration that report while coming to an conclusion. In Ajay kamal V. Alka Sharma High Court of MP[v] held that if the DIR  is not made,it cannot quash the proceedings ,hence the DIR is not compulsory. The application should be in prescribed form but the application cannot be thrown out if it is not in the prescribed format as in Milan Kumar Singh V. State of U.P. [vi]

         A notice to the respondent is served after the filing of the application through the Protection Officer.The Magistrate can pass an interim order to prevent further violence by providing the immediate relief to the woman.He can also pass the exparte order if the Magistrate satisfies that domestic violence may be committed. An appeal shall lie to the Court Of Session within 30 days from the date of the order of the Magistrate. He may also at any stage may secure the services of the persons engaged in promoting family welfare for the purpose of assisting him in discharging his functions. The orders under this Act are to be enforced in the same manner as in section 125 of CRPC. The court can direct the Protection Officer to assist in the implementation of the order. A breach of protection order or of an interim order by the respondent shall be an offence. It impose penalty upto one year imprisonment or fine of Rs. 20,000,or both. This offence is congnizable and non- bailable.

     Section 32(2) provides that upon the sole testimony of the aggrieved person, the court may conclude that the offence has been committed. The Act ensures speedy justice as the court has to start the proceedings and have the first hearing within 3 days of the complaint. The Act also provides for the penalty for not discharging duty of protection officer.

         Till 2005, remedies available for the victims of domestic violence in the civil court and criminal court were limited. There were no emergency reliefs available to the victims and relationships outside marriage were not recognized.

 Critical appraisal of the Act:  Though Act widens the concept of Domestic Violence but it does not include ‘forced sex’ or ‘ sex without the wife’s consent’. This Act had been adopted from US Act where there are nuclear families. Woman’s right to demand accommodation only in husband’s house is wrong. There is no provision if a female files a false against the males as females can’t be made respondents according to this act. It is always not the fault of men if there is distressed marriage. No where is mentioned the violence against mother-in-law ,they can be the victims of  violence in the hands of daughter-in-laws. Further the provision of divorce also not been here. The Act relieved the women to a wide extend but should be improved in various context.

     AT THE END ,I WANT TO SAY FEW WORDS TO EVERY MEN THAT,

“IF A MAN WANTS A WOMAN TO BE AN ANGEL,HE HAS TO MAKE HIS HOME HEAVEN,BECAUSE ANGLES’ CAN’T LIVE IN HELL”

                                                                                         COMPLIED BY:

                                                                                         VANITA BANSAL(ADVOCATE)

                                                                                          B.A.LL.B

                                                            

                                                        

                                                 

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[i] Aruna Parmod Shah vs Union Of India (Uoi) Crl. M.As. 4172-73/2008

[ii] B.R.Achala V. S appi Reddy and Ors.

[iii] Rajesh Kurre vs Safurabai Criminal Misc Petition No 274 of 2008

[iv] Sou. Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade & Ors CRIMINAL APPEAL NO.271 OF 2011

[v] Ajay Kant And Ors. vs Smt. Alka Sharma 2008 CriLJ 264, I (2008) DMC 1, 2007 (4) MPHT 62

[vi] Milan Kumar Singh V. State of U.P. 2007 CriLJ 4742