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Indian Legal Position on Child Sexual Abuse: A Brief Analysis

This paper seeks to examine the application of Indian Criminal Law to the cases of sexual offences involving children. The researcher has specifically analyzed IPC Section 375, 376, 377, 354, 509, the Indian Evidence Act and the Protection of Children from Sexual Offences Act, 2012 and the 2019 Amendment act. The researcher has also done a comparative analysis of laws of different countries dealing with sexual offences against children.

Child sexual abuse is increasing at an alarming rate all over the world. India is among the top five countries of the world facing highest rate of sexual offences involving children. Yet, the criminal law in India is inadequate in many respects to deal with such a sensitive and serious issue. The Law Commission in its 172nd Law Commission report[i] has reviewed complete law dealing with sexual offences after Sakshi v UOI case[ii].

The Commission appealed for numerous amendments to the laws dealing with the subject. Some amendments were made to the IPC after the Nirbhaya case by the 2013 Criminal Law amendment bill. Nonetheless, the law at present is inadequate to deal with sexual offences involving children.

Research Methodology
Statement of Problem:
The 2012 POCSO act though had a very noble intention but it was criticized at various lengths due to its inadequacy in punishing the offenders, thus, the 2019 amendment introduced death penalty for child sexual assault, but it is opined that the states throughout the world have introduced death penalty in such cases to portray themselves as stringent and intolerant but this provision of death penalty has a high chance of backfiring. This will be analysed in brief in the later sections of the paper.

Objectives:
  • Outlines the rules and procedures involved in the Criminal Justice process
  • Explains the law on child sexual abuse and its implication on investigation process and collection of evidence involving agencies like Police, doctors and courts.
  • Explains change in law related to evidence in order to make the law more child friendly which will ensure that more and more cases of child sexual abuse are reported.
  • Suggests ways in which the various NGOs and social workers can work more effectively in this regard.
  • To study about the recent 2019 Amendment to the POCSO 2012 Act and the pre and post POCSO act cases.

Hypothesis:
The paper is aimed at creating more awareness about the legal position of India on the issue of child sexual abuse. It also throws light on the loopholes in our judicial system and inadequacy of the criminal law. The paper can also be used in its entirety for a general understanding of Indian Criminal justice system’s approach in responding to victims of sexual abuse. The research is limited to the judicial decisions which were accessible to the researcher as very few cases actually reach High Court and the Supreme Court. The research is based on the assumption that law and authorities are ineffective in dealing with child abuse matters.

Research Questions:
  • The primary research question is whether the Criminal law of our country adequate to deal with the cases of sexual offences involving children even after the implementation of POCSO, 2012 and the 2019 Amendment
  • Secondly, are the various agencies like Police, Doctors and Courts effective enough to impart justice to the victims?

Research Methodology:
The work basically fulfils doctrinal research criteria as the possibility to have an empirical study over the topic is very feeble. But the approach is analytical in nature

Analysis of Indian Criminal Law and Its Comparison with Laws Of Other Nations

India is home to 430 million children which is approximately includes one in every five children below the age of 18 years, in the world.[iii] They face staggering challenges from the day they are born. Malnutrition, illiteracy, trafficking, forced labor, drug abuse, sexual abuse pornography etc. are not uncommon among the children in India.[iv]

The paper particularly deals with the problem of child sexual abuse in India. Child sexual abuse includesphysical or psychological maltreatment of a child usually by a person who is in a position of trust and confidence in relation to the child.[v] The person uses thechild for sexual stimulation or for sexual gratification.

National study undertaken by the Ministry of Women and child development[vi] defined ‘sexual assault’ as making the child fondle withhis/her private parts or making the child exhibit private body parts and being photographed in the nude.[vii] However, the report did not exhibit the true reality because most of the cases go unreported because of the stigma attached to it in our society.

A study conducted by the UNICEF after the 2012 Delhi gang rape revealed that one in every three rape cases, the victim is a child and these incidences are increasing at an alarming rate.[viii] Approximately 7200 children including infants are raped every year which is an issue of serious concern.[ix] Before May 2012, various sections of the IPC dealing with sexual offences were also applied to the cases of child sexual abuse resulting in serious miscarriage of justice as the provisions were not reasonably sufficient for their application to cases of child sexual abuse. Section 354 IPC punishes a person for outraging the modesty of a woman by use of criminal force but if we apply this section to case of say sexual assault of an infant the serious problem which would arise is what modesty does a child of 2 years have?

The application of provisions dealing with adults created numerous problems when applied to cases of child sexual abuse. Therefore, to solve these problems parliament enacted a special legislation POSCO Act in May 2012.[x] Under this law, all forms of child sexual abuses are specific offences with specific punishments for the perpetrators. Earlier, there was no law covering any non- penetrative sexual act committed against boys which is now clearly defined.

The new law has also laid down certain guidelines for police and court authorities to deal with the victims. Special child courts are also setup to deal with the issue however the effective application of these guidelines still remains a point of concern.

The problem of implementation has highly hampered the protection of children from sexual abuse in the country. Furthermore, National Commission for the Protection of Child Rights which was established as an independent body in 2007 which ensures that all such laws, policies, and programmes, are in agreement with the child rights enshrined in the Constitution of India and the UN Convention on the Rights of the Child.[xi]The Commission has also been assigned the task of overseeing the implementation of the POSCO Act.[xii]

Apart from these domestic laws, India is also a party to various international human rights treaties and covenants, including the International Covenant on Civil and Political Rights and the Convention on the Rights of Child, which provide specific protection for the rights of children. They demand various effective measures to prevent and punish abuses and ensure that the governmentadopts and implements effective measures to prevent such abuse. Human Rights network makes it mandatory for the Indian government to adopt and enforce policies that will prevent and redress sexual violence against children effectively and which will ensure justice.

Change after the Nirbhaya case

After the 2012 Delhi gang rape case, media along with other non-governmental played a very vital role in increasing awareness about child sexual abuse in the country. The media and the NGOs stressed on the increasing rates of child abuse and on the inability of the system to protect children, thus pressurizing and forcing the government to address the problem and to act accordingly in the interest of the child population.

As a follow up, the government took a major step and the parliament enacted its first law in May 2012to protect child sexual abuse.[xiii] The need for this law became more immediate after the case of Mrs. Madhu v. State of Haryana[xiv] involving Ruchika Girhotra, who was molested by a police officer when she was 14. In this case, the accused asked Ruchika’s parents to send to Canada as she was a brilliant tennis player.

The case was filed under Section 354 read with Section 509 IPC. The accused, SPS Rathore escaped prosecution for years even though there was an eye witness to the alleged acts.[xv] However the Indian Government has yet to build a strong and effective social network to protect the well-being of the children.

The flaws in the justice system

It is very critical to say anything about what happens after a child has been sexually abused which holds significance not only for his/her well-being but also for the protection of other children, because if the perpetrator is never identified or if/she allowed to move free, there are high chances of further abuse. Sometimes, the complaints of the children are simply rejected by the family members, Police and the medical experts.

In most of the cases, the perpetrator is often a family member or a person entrusted with care and custody of the child. In such cases, the child would refrain from speaking up becauseof constant threat of the family members. In a case before the Delhi court, the accused was convicted for having abducted and raped a 6 year girl who was member of his family.

The accused has earlier raped another girl of his family but the case was not reported because of the stigma attached as the family members believe that reporting a case will bring shame to their family. Also, there have been cases where the mothers didn’t take any action because of fear of being thrown out of the house by the in-laws. In other cases, the family members fear of being ostracized from the society.

One of the most significant reasons why families don’t come forward to report the cases of child sexual abuse because they think that they will not be treated sympathetically by the police and the medical experts which further adds to their trauma. Many doctors in India lack the competence to take such sensitive cases. Their role should include treating child well and counselling him/her. Police officials also try to persuade the parties to take back their cases.

Sometimes courts also drag cases for years. This shows the inability of our criminal justice system to deal with the sexual offences including minor which is a highly sensitive issue. Furthermore, children are also abused in institutions like NGOs for orphans etc. which are primarily established for the protection, welfare and development of a child. They are bestowed with the responsibility of taking care of the children residing in such institutions.Nonetheless, the cases of sexual abuse of children in these institutions are very common.

Protection of Children from Sexual Offences Act, 2012

POCSO which was enacted in 2012 is gender neutral, makes it mandatory for the victims to report the abuse, lists all kind of sexual offences against children and provides for their protection during the judicial process.

Some of the mandated laid down under POCSO are: [xvi]
  • The police officers in every circumstance must bring a case to the attention of the Child Welfare Committee within 24 hours of receiving a report
  • The police officers must also be in civil clothes while recording the minor’s statement so that the child does not get intimidated.
  • The statement of the minor must be recorded in presence of the person whom he/she trusts.
  • The medical examination of the child for the collection of forensic evidence should onlybe conducted by a lady doctor in presence of a person that the child trusts.
  • Special courtshave been set up under the act to conduct speedy and in-camera trials. It is the duty of these court to ensure that the minor is not exposed to the accused while recording his/ her statement, the identity of the minor remains undisclosed, the minor is not asked to repeat his/her testimony in court and that minor can also give his/her testimony through a video, the cases are not delayed and are disposed of within a year from the date of it being reported, an interpreter, translator, special educator or any other expert should be present in court if the minor needs any assistance, and the family of the minor should be awarded compensation for medical treatment and rehabilitation.
2019 Amendment [xvii]
Features of the law:
Penetrative sexual assault: Under the Act, a person commits penetrative sexual assault if he:
  1. penetrates his penis into the vagina, mouth, urethra or anus of a child, or
  2. makes a child do the same, or
  3. inserts any other object into the child’s body, or
  4. applies his mouth to a child’s body parts.
The punishment for such offence is imprisonment between seven years to life, and a fine. The Bill increases the minimum punishment from seven years to ten years. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.

Aggravated penetrative sexual assault: The Act defines certain actions as aggravated penetrative sexual assault. These include cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child. It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others. The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.

These include: (i) assault resulting in death of child, and (ii) assault committed during a natural calamity, or in any similar situations of violence. Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life, and a fine. The Bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.

Aggravated sexual assault: Under the Act, sexual assault includes actions where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration. Aggravated sexual assault includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others. The Bill adds two more offences to the definition of aggravated sexual assault.

These include:
  1. assault committed during a natural calamity, and
  2. administrating or help in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.

Pornographic purposes:

Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification. The Act also penalises persons who use children for pornographic purposes resulting in sexual assault. The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.

In addition, the Bill enhances the punishments for certain offences as shown in Table 1.
Table 1: Punishment for offences for using child for pornographic purposes
 
Offence POCSO Act, 2012 2019 Bill
Use of child for pornographic purposes Maximum: 5 years Minimum: 5 years
Use of child for pornographic purposes resulting in penetrative sexual assault
  • Minimum: 10 years
  • Maximum: life imprisonment
  • Minimum: 10 years (in case of child below 16 years: 20 years)
  • Maximum: life imprisonment
Use of child for pornographic purposes resulting in aggravated penetrative sexual assault Life imprisonment
  • Minimum: 20 years
  • Maximum:  life imprisonment, or death.
Use of child for pornographic purposes resulting in sexual assault
  • Minimum: Six years
  • Maximum: Eight years
  • Minimum: Three years
  • Maximum: Five years
Use of child for pornographic purposes resulting in aggravated sexual assault
  • Minimum: Eight years
  • Maximum: 10 years
  • Minimum: Five years
  • Maximum: Seven years

Note:
Punishment for using child for pornographic purposes resulting in any form of sexual assault is in addition to minimum five years for use of child for pornographic purposes.

Sources:
Protection of Children from Sexual Offences (Amendment) Bill, 2019; Protection of Children from Sexual Offences Act, 2012; PRS.

Storage of pornographic material:
The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, or a fine, or both. The Bill amends this to provide that the punishment can be imprisonment between three to five years, or a fine, or both. In addition, the Bill adds two other offences for storage of pornographic material involving children.

These include:
  1. failing to destroy, or delete, or report pornographic material involving a child, and
  2. transmitting, displaying, distributing such material except for the purpose of reporting it.

Comparative Analysis Of Laws Of Different Countries

Internationally, child sexual abuse is recognized as a serious crime against children. However, the lawsvary from country to country by their local definition of who is a child and what constitutes child abuse. Child sexual abuse is a violation of every child’s right when an adult tries to have a sexual intercourse with a minor who is doli incapax for giving consent. This is also called as statutory rape.[xviii] The researcher has examined the laws of some countries where rate of child sexual abuse is very high and others where the rate is relatively low.

South Africa
South Africa is one among the top five countries which have the highest rate of child sexual abuse.[xix] According to a 2009 report by trade union solidarity helping hand, one child is raped every three minutes in South Africa.[xx]

Chapter 3 of the Criminal (Sexual offences and related matters) Act, 2007 deals with sexual offences against children. [xxi] It envisages:
  1. Statutory rape which includes acts of consensual sexual penetration[xxii
  2. Statutory sexual assault which includes acts of consensual sexual violation
  3. Sexual exploitation and sexual grooming of children
  4. Exposing children to explicit pornographic content and using children for pornographic purposes
  5. Forcing and casing child to witness sexual acts, self-masturbation and display of genital organs.
  6. Sexual exploitation of disabled children in the ways mentioned above.
The South African Supreme also made it illegal for a person previously convicted of a sexual offence to loiter near public places like schools, playgrounds etc. in order to protect children from sexual assault. [xxiii]

United Kingdom

UK also witnesses very high rate of child sexual abuse. According to National Society for Prevention of Cruelty to Children, in 2011/12 there were 36000 cases of sexual offences against children were recorded.[xxiv]

The 2003[xxv]Sexual Offences Act deals with following sexual offences:
  1. Trafficking children for the purpose of sexual exploitation
  2. Child sexual abuse by means of prostitution and pornography which includes encouraging or facilitating prostitution or pornography.
  3. Sexual abuse of children with mental disorder.
  4. Voyeurism, exposure of ones genitals to the child and engaging in sexual acts in public lavatory.

Also, the accused can no longer argue that the child consented for the sexual act. Any sexual intercourse and other non-penetrative activities like sexual assault, or causing or inciting a child to engage in sexual activity. These cover a range of both physical and non-physical contact.

US Federal Law

All states in US have their different laws dealing with child sexual abuse. Federal Law is applicable on the federal lands which include areas such as military base, Indian territories and other government owned places. 18U.S.C. Section 2241, 2242, 2243, 2244[xxvi] deal with aggravated sexual abuse, sexual abuse, sexual abuse of a minor or ward respectively.[xxvii] Offenders under these sections are fined as well as punished. An offender faces harsh sentences if the crime that occurred is of aggravated nature for instance he/she abused the children by posing threat of serious injury like death, he/she kidnapped the child for committing child sexual abuse.

Section 2256 of title 18 U.S.C. provides for definition of child pornography as visually depictingany sexually explicit conduct involving a minor (less tha18 years of age).[xxviii] These representations include images, videos or computer generated images which indistinguishable from the actual minor, any data stored on the computer which can be converted into an image of child pornography.[xxix] Any depiction of minor less than 18 years of age is illegal irrespective of the child’s consent.[xxx] Under Section 2251, persuading, enticing, coercing and inducing child to engage in any sexually implicit act is illegal.

Any individual who attempts to conspire for such purpose is also subjected to punishment under the federal law.[xxxi] Furthermore, Section 2251A of Title 18, United States Code, specifically prohibits selling, buying or transferring the custody of minor for purposes of producing child pornography specifically done by the parents or any legal guardian or other person in custody or control of that minor under the age of 18.[xxxii]

Lastly title 18United States Code, Section 2260 makes it illegal for a person outside the United States to produce, receive, transport, ship, or distribute child pornography with the intention to import or transmit such visual depiction into the United States.[xxxiii] Any violation of federal law is a serious offence and the perpetrators are subjected to severe punishment with fine. Convicted offenders may even face harsher punishment in case they have been earlier convicted of the same crime. In addition to federal law, sexual offender can also be punished under the state law.


Analysis of Judicial Pronouncements - Pre POCSO, 2012

Tuka Ram AndAnrvs State Of Maharashtra [xxxiv]

Facts of the case: A young tribal girl named Mathura lived with her brother Gama She worked as the laborer at the Nushi's house for the employment. During the period of employment she developed the sexual relations with the son of Nushi's sister, Ashok. They decided to get married. Her brother filed a complaint to the police ensuring that Mathura had been kidnapped by Nushi, her husband Laxman and Ashok on 26th of March, 1972.

The statements of Ashok and Mathura were recorded at about 10:30 P.M., and the head constable Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. The appellants also asked Mathura to stay at the police station only. Thereafter closing the doors and turning off the lights inside, Ganpat, the appellant No.1 took Mathura to the washroom and raped her.

After the Ganpat was done, the appellant No. 2 Tukaram, tried to rape her but failed due to highly intoxication but touched her private parts. After the incident Mathura was examined by the doctor and found no injury on her body. The examiner did not found the symptoms of semen, even on the pubic hair. The semen however found on the girl's clothes. After examining her doctors has also estimated the age of Mathura as between 14 to 16 years’

Issues at hand:
  1. Whether there was consent of girl
  2. Whether the appellant No.1 and No.2 will be charged for Section 376 of Indian Penal Code?
  3. Whether the act of police officer will amount to rape?
  4. Whether the grounds of acquittal of the police officer by the Court are valid?

Arguments Advanced:
  1. According to the decision of the Trial Court, in the question of consent, the intercourse had developed consensually as the girl was habituated to sex and wants to fulfill her sexual needs. But, High Court reversed the decision of the Trial Court and held that that the sexual intercourse was a rape and not a consensual sexual intercourse. It is proved that as Mathura was a minor and of 14 years of age, even if the consent given by her; how it can be considered as the valid consent. Hence, it was not the valid consent
     
  2. On the evidences presented before the Trial Court it was held that Mathura was habituated to sex and on the basis of this evidence, both of the appellants are not charged with Section 376 of Indian Penal Code and got acquitted. But, to the contrary High Court held that even though Mathura was habituated to sex and as both the accused were stranger to Mathura, how she can have sexual intercourse with them to fulfill her sexual needs.
     
  3. Trial Court has acquitted both the appellant and High Court held the Police Officers liable for the offence of rape under Section 376 of Indian Penal Code.
     
  4. The Trial Court held that since Mathura had not raised any alarm, her allegations of rape were untrue. Her ways humbly following Ganpat and were making allow him to have sexual intercourse with her and giving indication that the 'consent' in question was not a consent which could be kept aside as 'passive submission[xxxv]'. According to the Trial Court police officers are acquitted on the basis that the intercourse had developed consensually and while having intercourse Mathura have not raised any alarm or did not made any sound for help. But the High Court held both of the police officers liable for the offence of rape

Decision of the Court:
The appellant contended for the special leave. And Supreme Court again converted the decision of the High Court and acquitted the accused. It was agreed with the decision of the Session Judge and held that this was a case of consensual sexual intercourse. On this spot the Supreme Court more added that as no marks of injury were found on Mathura’s body there was no battle on her part and since she did not raise an alarm for help she consented to sex".

Analysis of the judgement:
Rape is defined in Section 375 of the Indian Penal Code. In general sense rape is a sexual intercourse with a women without her consent by force or fear. In the year 1983 Section 375 has also gone through amendment, which had changed the definition of rape and also made changes in the punishments of the rape mentioned under Section 376.

This was made through the Criminal Law (Amendment) Act of 1983. The amendment of 1983 brought due to the criticism of the judgment of Tukaram v State of Maharashtra i.e; Mathura Gang Rape Case3. The ratifications of the case were seen in the amendments that were brought about in the IPC and the Indian Evidence Act. Section 376 A to D is new in the IPC and section 114A was added as an introduction in the Indian Evidence Act.

There are the six essential elements that defines rape. The first condition necessary for the commission of the rape to be the sexual intercourse between a man and a woman. It was strongly believed that the rape can be committed only if the sexual intercourse had taken place without the consent of the victim, but this is not always he case, rape can be committed even after the consent has been obtained if the women is below the age of sixteen years.

On a closing part at which the situation necessarily required for the commission of rape, majorly divided into three parts. The starting two clauses deals with sexual intercourse with a woman ‘against her will’ and ‘without her consent’. This means that the women is passively capable of giving consent or not.

The rest two clauses again deals with, the consent given by women woman in fear by putting her family members into threat or the consent obtained through misconception. The last two situation deal with the situation consensual sex takes place with the underage woman.

After POCSO:

POSCO, 2012 was implemented to make it easier for the victims of sexual abuse to get justice. The Act directs the use of more humane ways to deal with victims and prohibit victimization of the child at the hands of the judicial system. Because of which, the reporting of such cases has doubled due to increased awareness.

Independent Thought vs. Union of India [xxxvi]

Facts of the case:
The petitioner is a society registered on 6th August, 2009 and has since been working in the area of child rights. The society provides technical and hand-holding support to non-governmental organizations as also to government and multilateral bodies in several States in India. It has also been involved in legal intervention, research and training on issues concerning children and their rights.

The society has filed a petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years. According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent.

Almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this reason that the law penalizes sexual intercourse with a girl who is below 18 years of age. Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason.

The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.

Issues at hand:
Whether Exception 2 to Sec 375 of the Indian Penal Code, in so far as it relates to girls aged 15 to 18 years, is liable to be struck down as violative of Art 14, 15 and 21 of the Constitution.

Arguments advanced:
Respondents
  1. Child marriages are still prevalent in India and it is only voidable not void under The Prevention of the Child Marriage Act. So it is essential to retain the age of 15 under exception 2 of Sec 375 of IPC so as to give protection to the husband and wife against criminalizing the sexual activity between them
  2. National Family Health Survey-III says that 46% of women between 18-29 years in India were married before the age of 18 and hence criminalizing the consummation of such marriage not be appropriate.
  3. Providing punishment for child marriage with consent does not appear to be appropriate in view of socio-economic conditions of the country.
  4. Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence of rape under the IPC

Petitioner
  1. Exception 2 to Sec 375 of IPC is arbitrary, discriminatory and contrary to the beneficial intent of Art 15(3).Absolutely nothing is achieved by entitling the husband of a girl child between 15 and 18 years of age to have non-consensual sexual intercourse with her. The marital status of the girl child between 15 and 18 years of age has no rational nexus with the unclear object of this provision
  2. The provision has placed the girl child at great disadvantage, contrary to the visionary and beneficent philosophy propounded by Art 15(3) of the Constitution.
  3. A forceful sexual intercourse with a wife between the age of 15 to 18 is also violative of human rights as defined under Sec 2(d) of The Protection of Human Rights Act, 1993 and Sec 3 of The Protection of Women from Domestic Violence Act, 2005.

Decision of the court:
On considering these matters in detail the two judges have come with concurring but separate judgment. It says that Exception 2 to Sec 375 IPC in so far as it relates to a girl child below 18 years is laible to struck down on the following grounds:
  1. It is arbitrary and violative of rights of girl child and not just or reasonable and therefore violative of Art 14, 15 and 21 of the Constitution of India.
  2.  It is inconsistent with the provisions of POSCO, which must prevail.Therefore, Exception 2 to Sec 375 is read down as follows; Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rapeHowever, it was clearly stated that the judgment will have only prospective effect.It is also clarified that Sec 198(6) of the Code will apply to cases of rape of wives below 18 years, and cognizance can be taken only in accordance with the provision of Sec 198(6) of the Code.

Analysis of the judgement:

The Protection of Children from Sexual Offences Act, 2012 states that law should operate in a manner that the best interest and well being of the child be regarded with paramount importance. And sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed. Moreover, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Sec. 5(n) of the POSCO Act and is punishable under Sec 6 by rigorous imprisonment of not less than ten years and may extend to imprisonment for life and fine.

The Convention on the Rights of the Child (CRC) under its Art 34 makes all the member countries bound to undertake all appropriate national, bilateral and multi lateral measures to prevent the coercion of a child to engage in any unlawful sexual activity.

Under the Juvenile Justice ( Care and Protection of Children) Act, 2015 a girl child below 18 years of age and who is sought to be married is a child in need of care and protection and therefore required to be produced before a Child Welfare Committee.A Women’s right to privacy, dignity, bodily integrity and right to reproductive choices should be respected. (Suchita Srivastava v. Chandigarh Administration, State of Maharashtra v. Madhukar Narayan Mardikar, Devika Biswas v. Union Of India)

Rape is a heinous crime which violates the bodily integrity of a girl child, causes trauma and destroys her freedom of reproductive choice is a composite issue that needs serious consideration and deliberation. (State of Karnataka v. Krishnappa, Bodhisattwa Gautam v. Subhra Chakraborty, State of Punjab v. Gurmit Sigh)

In India a marriage with a girl below 18 years of age is punishable (only voidable) under the PCMA. But if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault punishable under Sec 6 of the POSCO Act. However IPC by virtue of Exception 2 to Sec 375 makes sexual intercourse with one’s wife below 18 years of age, not punishable and an exception to the offence of rape. The two provisions are contradictory in nature and the same needs to be resolved.

The Harmonious interpretation employed by this Court in this regard is not at all an apt solution to the problem. Because this new reading of the provision can in no way protect child brides from the huge emotional and physical turmoil that they face as a result of the early marriage. A very good option would have been to make child marriages void ab intio ( as provided by the State of Karnataka) and then invalidating Exception 2 to Sec 375 of IPC.

Moreover the justifications like child marriage is a tradition and it is prevalent in many parts of the country is no good justification to continue such exploitative practices and it’s the need of the hour to regulate such practices by law.

Conclusion
After thorough analysis of Indian Criminal law, judicial decisions and the laws of other countries, it could be concluded that the present law is inadequate in many respects. Furthermore, when Law is clear at certain instances, the guidelines laid down are not strictly implemented by the Police, doctors and the courts which seriously hamper justice for the child victim.

The researcher appeals for further reforms in the rules and procedure under law and their strict implementation for furthering the interest of the child victims. The Government can also accommodate some of the principles from the laws of the other countries which are more children friendly and work towards the advancement of justice.

These reforms may include:
  • Setting up of centres similar to those in Netherlands who will assume the responsibility of overseeing that complete justice is done to the child and the child is not further victimized by the judicial process.
  • To make the working of child welfare institutions more effective so that it goes in consonance with the judicial system to protect victim’s interest and the interest of the Society. The same structure is followed in Canada.
  • Also, some the Government should also lay down some rules in order to protect the interest of the vulnerable witnesses.
End-Notes:
  1. http://www.lawcommissionofindia.nic.in/rapelaws.html
  2. Sakshi v UOI, AIR 2004 SC 3566
  3. The Planning Commission, Government of India, Report of the Working Group on Child Rights for the 12th Five Year Plan (2012–2020), http://planningcommission.nic.in/aboutus/committee/wrkgrp12/wcd/wgrep_child.pdf (Last accessed June 7, 2020), p. 8
  4. United Nations Children’s Fund, The Situation of Children in India – a profile, May 2011, http://www.unicef.org/india/The_Situation_of_Children_in_India_-__A_profile_20110630_.pdf ( Last accessed June 7, 2020).
  5. The Problem of Child Sexual Abuse in India Laws, Legal Lacuna and the Bill – PCSOB-2011,
    http://medind.nic.in/jal/t12/i2/jalt12i2p170.pdf (Last accessed June 7, 2020)
  6. Ministry of Women and Child Development, Government of India, National Study on Child Abuse: India 2007, 2007, http://wcd.nic.in/childabuse.pdf (Last accessed June 7, 2020) p. 1
  7. Ibid.
  8. UNICEF, UN in India condemns the gang rape of a student in New Delhi, December 31, 2012, http://www.unicef.org/media/media_67097.html (Last accessed June 7, 2020
  9. Ibid.
  10. http://wcd.nic.in/childact/childprotection31072012.pdf (Last accessed June 12, 2020)
  11. Home, National Commission for the Protection of Child Rights, http://www.ncpcr.gov.in (Last accessed June 12, 2020)
  12. Ibid
  13. Supra note 8
  14. Mrs. Madhu v. State of Haryana, 1998(4) RCR 854
  15. Ibid.
  16. http://wcd.nic.in/childact/childprotection31072012.pdf (Last accessed June 12, 2020)
  17. https://www.prsindia.org/billtrack/protection-children-sexual-offences-amendment-bill-2019-0
  18. http://www.unicef.org/zimbabwe/resources_15420.html (Last accessed June 12, 2020)
  19. http://www.ibtimes.co.uk/child-sexual-abuse-top-5-countries-highest-rates-1436162 (Last accessed June 12, 2020
  20. Ibid.
  21. http://www.justice.gov.za/legislation/acts/2007-032.pdf (Last accessed June 12, 2020)
  22. http://www.gov.za/sites/www.gov.za/files/38977_7-7_Act5of2020CriminalLaw_a.pdf (Last accessed June 12, 2020)
  23. Ibid.
  24. http://www.nspcc.org.uk/preventing-abuse/child-abuse-and-neglect/child-sexual-abuse/sexual-abuse-facts-statistics (Last accessed June 12, 2020)
  25. http://www.cps.gov.uk/news/fact_sheets/sexual_offences/ (Last accessed June 12, 2020)
  26. http://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-sexual-abuse (Last accessed June 12, 2020)
  27. Ibid
  28. http://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography(Last accessed June 12, 2020)
  29. Ibid.
  30. Supra note 46
  31. Ibid.
  32. Supra note 46
  33. Ibid.
  34. 1979 AIR 185
  35. Ibid.
  36. MANU/SCOR/52527/2017

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