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
The Commission appealed for numerous amendments to the laws
dealing with the subject. Some amendments were made to the IPC after the
by the 2013 Criminal Law amendment bill. Nonetheless, the law at
present is inadequate to deal with sexual offences involving children.
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.
- Outlines the rules and procedures involved in the Criminal Justice
- 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.
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
- 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
- Secondly, are the various agencies like Police, Doctors and Courts
effective enough to impart justice to the victims?
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
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.
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
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
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]
2019 Amendment [xvii]
- 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
- 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
Features of the law:
Penetrative sexual assault: Under the Act, a person commits penetrative sexual
- penetrates his penis into the vagina, mouth, urethra or anus of a child,
- makes a child do the same, or
- inserts any other object into the child’s body, or
- applies his mouth to a child’s body parts.
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
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.
- assault committed during a natural calamity, and
- administrating or help in administering any hormone or any chemical
substance, to a child for the purpose of attaining early sexual maturity.
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
||POCSO Act, 2012
|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
- Minimum: 20 years
- Maximum: life imprisonment, or death.
|Use of child for pornographic purposes resulting in
- 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
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
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
- failing to destroy, or delete, or report pornographic material involving
a child, and
- 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 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:
- Statutory rape which includes acts of consensual sexual penetration[xxii
- Statutory sexual assault which includes acts of consensual sexual
- Sexual exploitation and sexual grooming of children
- Exposing children to explicit pornographic content and using children
for pornographic purposes
- Forcing and casing child to witness sexual acts, self-masturbation and
display of genital organs.
- 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]
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:
- Trafficking children for the purpose of sexual exploitation
- Child sexual abuse by means of prostitution and pornography which
includes encouraging or facilitating prostitution or pornography.
- Sexual abuse of children with mental disorder.
- 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.
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:
- Whether there was consent of girl
- Whether the appellant No.1 and No.2 will be charged for Section 376 of
Indian Penal Code?
- Whether the act of police officer will amount to rape?
- Whether the grounds of acquittal of the police officer by the Court are
Decision of the Court:
- 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
- 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.
- 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
- 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
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.
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.
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
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
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.
- 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
- 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.
- Providing punishment for child marriage with consent does not appear to
be appropriate in view of socio-economic conditions of the country.
- 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
Decision of the court:
- 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
- The provision has placed the girl child at great disadvantage, contrary
to the visionary and beneficent philosophy propounded by Art 15(3) of the
- 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.
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
- 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.
- 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
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
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.
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.
- Sakshi v UOI, AIR 2004 SC 3566
- 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
- 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).
- 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)
- 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
- 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
- http://wcd.nic.in/childact/childprotection31072012.pdf (Last accessed June
- Home, National Commission for the Protection of Child Rights, http://www.ncpcr.gov.in (Last accessed June 12, 2020)
- Supra note 8
- Mrs. Madhu v. State of Haryana, 1998(4) RCR 854
- http://wcd.nic.in/childact/childprotection31072012.pdf (Last accessed
June 12, 2020)
- http://www.unicef.org/zimbabwe/resources_15420.html (Last accessed June
- http://www.ibtimes.co.uk/child-sexual-abuse-top-5-countries-highest-rates-1436162 (Last
accessed June 12, 2020
- http://www.justice.gov.za/legislation/acts/2007-032.pdf (Last accessed June
- http://www.gov.za/sites/www.gov.za/files/38977_7-7_Act5of2020CriminalLaw_a.pdf (Last
accessed June 12, 2020)
- http://www.nspcc.org.uk/preventing-abuse/child-abuse-and-neglect/child-sexual-abuse/sexual-abuse-facts-statistics (Last
accessed June 12, 2020)
- http://www.cps.gov.uk/news/fact_sheets/sexual_offences/ (Last accessed June
- http://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-sexual-abuse (Last
accessed June 12, 2020)
accessed June 12, 2020)
- Supra note 46
- Supra note 46
- 1979 AIR 185