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Liability of parents under POCSO

Introduction And Background:
Abuse refers to the physical, emotional, sexual, verbal and economic exploitation of another person. In all these types, sexual abuse can be categorised into forms of harassment, manipulation and assault. On an average, the rate of sexual abuses against women in India alone was 4.9% in 2019 and the number of child abuses in the year 2020 was a shocking 38.8%.

Understanding Abuse:
A child, according to United Nations Convention on Rights of the Child is defined as any human being below the age of 18. Sexual abuse against a child (16 years old under POCSO 2012) refers to the sexual activity done by an adult or an adolescent to a child. The two types of child abuse recognised is touching and non-touching. As the name suggests, touching involves making the child touch the genital areas of another person or another person touching the genital areas of the child, playing sexual games or inserting or penetration of any object or body part into the vulva, anus or mouth of the child.

In the case of Parminder V State of Delhi (1947)[1] it was ruled that rape can be committed without the involvement of genital injury or seminal stains. The other type, non-touching is showing of pornography or indulging the child in pornographic practises or watching them undress themselves or in the bathroom. All these constitute to sexual harassment of a child.

Reasons For Abuse:
In India 109 child abuse cases are being registered every day, whereas the number of cases not being registered cannot be guessed. The reason for not registering may include lack of proper family structure, societal exclusion or the child simply not telling their parents or guardians because of guilt, fear or self-blame they themselves feel. There are also situations in which children confess to their parents or guardians about the abuse and they do take action, not legally but morally, like they avoid their child from being put into such situations again or warning the accused.

There is also, among all these situations one wherein parents ignore the complaints of the child. They simply do not pay heed to the child or do not believe in what the child says because they feel "he/she doesn't know what they are talking about" or simply do not want to offend the accused. In such situations the offense is being committed repeatedly and the child is made to undergo the same torture again and again because the parents whose moral duty is to protect the child fail in that duty.

Judicial Initiative And Legislative Framework:

Duties of parents haven't been recognised exclusively under the Indian Legal System; however, it has been implied under various acts and statues. Under the Guardians and Wards Act 1890 the duties of a guardian are to provide support, health and education and look into other matters as the law prescribes. In the cases of Nirali Mehta V Surendrakumar Surana[2] and in ABC V State (NCT of Delhi)[3], the Children's Act of 1989 of the United Kingdom (section 3)[4] was used to help understand the duties and responsibilities of the parent.

The Protection of Children from Sexual Offences (POCSO 2012) is an act set up to protect children from being abused. Under the POCSO Act (2012), section 21[5] any person that is aware of the crime being committed but does not report or convey an offense can be punished. The need for this provision was recognised after the Pothumbu Government School Case[6] where in the offender, the headmaster was booked under All India Democratic Women Association (AIDWA). The teachers, who knew that the assault was being committed was transferred and not held liable because the POCSO Act was not set up.

Following the same principle, parents also should be held liable for not reporting the crime or taking necessary steps to protect the child, as their non action can lead to continuation of the crimes which can cause serious mental and physical issues to the child. In the case of Upendra Kumar Vs State[7] the person who witnessed the offence and failed to report was found guilty in the eyes of the law and bail and a fine was issued however in the case of M H Gangamaregowda vs The State Of Karnataka[8] bail was dismissed by the cognizance of the court.

In a hypothetical scenario where a kid is being abused and his/her/they parents are not ready to report the crime, if the parents themselves warn the offender or take precautions to protect the ward from the accused whether it includes legal remedies or not, the chances of the child suffering issues are comparatively less than compared to the situation in which the parents ignore the complaint. This ignorance and negligence of the parent leads to the child being abused continuously and if the offender is aware of the fact that the parents are not taking any action despite the complaint, he gets arrogant and the assault might continue in a greater length and the belief that 'nothing will happen' will give the offender confidence to commit more such offences to other children.

In such a situation if the parent had lifted even a little finger against the accused, the child would have been safe and therefore it is true to believe that the parents are also partially responsible and liable as the offender in abusing the child because of their negligence and non-fulfilment of duties as parents and responsible citizens of the country.

It must be noted that there is a clear lack of implementation of the particular provision as section 21 states "any person" and this can include parents as well. No cases being filed in this regard is the result of lack of awareness and necessary remedies as parents are the first people that will be approached by the children and if their plea is ignored, if or when the case does come to the court's knowledge, the bench must take necessary action to punish the parents so that it stands as a lesson and such cases of ignorance by the parents reduce

The punishment that the parents need to be given if found guilty for non-action from their side which results in continued assault of child, must be decided on cases to case basis, keeping in mind the best interest of the child. It is not possible to provide the parents with imprisonment as the care of the child will be put in jeopardy. Therefore, it is best if the punishment includes warning, as if this warning is not heeded, the parents will be held liable under contempt of court for disobeying court orders or fine or community service. It must also be checked if the parents are treating the child with care after the case is over, as parents might take revenge on the child for the punishment served on them.

Children are the new generation and face of the country. Spoiling their mental and physical health for fulfilling the lust of adults is a serious crime. But what must be understood is that when children come to their guardians with faith to help them, ignoring or belittling them will not only make them doubt themselves but also cause other mental traumas and disorders. In a time where parents are suing their children for not providing a grandchild and failing their responsibility as a child, we must also look into the duties and responsibilities of a parent and necessary actions must be taken.


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