Author Name:   s.aatif23

The article aims at highlighting flaws and shortcomings in a relatively recent legislation, the Protection of Children from Sexual Offences Act, 2012

Loopholes in POCSO

“Childhood is a promise that is never kept”, said Ken Hill. Child sexual abuse has reached a critical situation in India. Many studies both from governmental and non-governmental sources show a grim picture of the society. An NGO named RAHI (Recovery and Healing from Incest) conducted India’s first study of child sexual abuse. It surveyed 600 English speaking women belonging to the middle class and upper class of society. 76% of these women had been abused in childhood or adolescence, out of which in 40% cases the perpetrator was a family member, mostly an uncle or cousin. A really disturbing fact is that the survey confirmed that 72% of the victims said they were abused and they did not report the matter to anyone. Only 3% of the victim’s families complained to the police or made the abuse public, interestingly, prior to the study of government of India in 2007. Despite the study making its funding public, nothing much was done by the government or related agencies to address the problem with seriousness.

The Indian government backed a survey of 1,25,000 children in 13 states. Of the children interviewed, 53% said that they had been subjected to one or more forms of sexual abuse. Over 20% of those interviewed said they were subjected to severe forms of abuse. Of those who said they were sexually abused, 57% were boys. The study provided alarming information on child sexual abuse. The study shows that almost 54% children reported having faced one or more forms of sexual abuse. Andhra Pradesh, Bihar, Assam and Delhi reported the highest percentage of such abuse among both boys and girls. Approximately, 22% child respondents facing severe forms of sexual abuse and 51%, other forms of sexual abuse. Also, out of the children respondents, almost 5.5% reported being sexually assaulted. While, children in Assam, Bihar and Delhi reported the highest incidents of sexual assault, children on street, children at work and alarmingly, children in institutional care top the list. In almost half of the cases, persons were known to the child or in a position of trust and responsibility. It was also found that, most children did not report the matter to anybody. Also girls suffered emotional abuse due to an additional trauma of girl child neglect. Every second child reported facing emotional abuse, with an equal percentage of both boys and girls. In an enormous 83% of the cases parents were the abusers. Sadly, approximately 48% of the girls wished they were boys.

The Protection of Children from Sexual Offences Act, 2012 (POCSO) is a new law enacted to curb child sexual offences. The chapter headed as “Sexual Offences against children” lays down provisions for various kinds of offences against children and the punishment for the same.

Position prior to the Act

India has ratified the UN Convention on the Rights of Child (CRC) on 11th December, 1992. The State parties to the Convention are required to undertake all appropriate national, bilateral and multilateral measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices and the exploitative use of children in pornographic performances and materials.

The data available from the collection of the National Crime Records Bureau (NCRB) showed that there was an increase in the cases of sexual offences against children. This was corroborated by the Study on Child Abuse. It was also felt that the sexual offences against children were not adequately addressed by the already prevalent laws. The interest of the child, as a victim and as a witness, was needed to be protected.

It was, therefore, proposed to enact a self-contained law inter alia to provide for protection of children from sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of the child at every stage of the judicial process, incorporating child friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of special courts for speedy trial. The earlier law required sexual intercourse for completing the offence of rape. The law on point of age also offered a grey area in its determination. Courts were helpless in holding accused guilty for a graver offence if the penetration was found to have been made by non-penile organs or objects.

The 2012 Act

Sections 3-12 of the POCSO deal with sexual offences against children. Section 3 reads as follows:

“3. Penetrative sexual assault – A person is said to commit “penetrative sexual assault” if-

(a) he penetrated his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”

The above section talks about penetration. Merriam Webster dictionary defines penetration as the act of going through or into something. Cambridge online dictionary defines penetration as a movement into or through something or someone or the act of a man putting his penis into his partner’s body during sex.

When an offender uses his penis, any body part or any object to enter the body of the child, to any extent, through the vagina, mouth, urethra or anus the offence of penetrative sexual assault is said to have been committed. It is not necessary that the offence will be completed only when the offender enters the body of the child but it will also be completed if the offender makes the child to do any act of the aforesaid nature to his (offender’s) body.

The ways may be different but in all cases penetration is a sine qua non for completion of the offence. At times, victims report that the offender was very aggressive in the sense that he removed the victim’s clothes and did everything towards the completion of the offence sans penetration. In such a scenario, any other offence under the IPC or the POCSO may be said to be committed, but not penetrative sexual assault.

The voluntariness of the victim cannot be a defence in offences under the POCSO as consent of a minor or child is immaterial.

The effect of POCSO in conjugation with the 2013 amendment is that if a penetration (penile or non-penile) is made in the vagina, mouth, urethra or anus of a child then it is punishable under the 2012 Act. If such a penetration is made in the vagina, mouth, urethra or anus of an adult woman then it is punishable under section 376 IPC.

Depth of penetration is immaterial

Modi in his Medical Jurisprudence and Technology had reported:

“Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia Majora or the Vulva or Pudenda with or without emission of semen or even attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.”

Punishments under the Act

Section 4 of the the Protection of Children from Sexual Offences Act, 2012 provides punishment for the offence of Penetrative Sexual Assault and Section 6 provides punishment for the offence of Aggravated Penetrative Sexual Assault. The provisions are:

“4. Punishment for penetrative sexual assault- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extent to imprisonment for life, and shall also be liable to fine.”

“6. Punishment for aggravated penetrative sexual assault- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.”

Punishment is often mistakenly confused with negative reinforcement. Not to forget, reinforcement always increases the chances that same behaviour will recur and a punishment always decreases such chances. The Apex Court in State of U.P. v. Satish, laid down the philosophy of prescribing punishment as follows:

“A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trail in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusation by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e., the Judge that leads to determination of the lis.”

This law is an exception to the general principle followed in Indian criminal jurisprudence i.e. innocent until proven guilty. Though punishments have been provided for false complaints or false information with malicious intent, catching hold of such false complaints is quite difficult due to presence of the presumption.

Another important aspect is with regard to Section 2(1)(d) of the Protection of Children from Sexual Offences Act, 2012. The relevant provision is:

“2. Definitions- (1) In this Act, unless the context otherwise requires,-

(d) “child” means any person below the age of eighteen years”

Hence, age is the only criteria. In State v. Suman Dass, a 15-year-old girl left home and married a 22-year-old man. Her mother filed a complaint alleging that the man had kidnapped and sexually assaulted her. In court, the girl admitted to having gone willingly and to having sexual intercourse. J. Dharmesh Sharma was of the view that a strict interpretation of the POCSO Act “would mean that the human body of every individual under 18 years of age is the property of State and no individual below 18 years of age can be allowed to have the pleasures associated with once [sic] body.” He reasoned that, “The words ‘penetrative sexual assault’ used in Section 3 of the POCSO Act goes to suggest that where physical relationship or sexual intercourse had taken place with consent of a girl child which is not derived by coercion or not in the nature of an assault or use of criminal force, or which is not resulting in exploitation, or where the consent is not obtained for unlawful purpose, no offence within the ambit of Section 3 of POCSO Act can be said to have been committed.”

It is also important to quote here Sections 3, 4, 5 and 6. The relevant provisions are as follows:

“3. Penetrative sexual assault- A person is said to commit “penetrative sexual assault” if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person, or any other person.”

“4. Punishment for penetrative sexual assault- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.”

“5. Aggravated penetrative sexual assault- (a) Whoever, being a police officer, commits penetrative sexual assault on a child-

(i) within the limits of the police station or premises at which he is appointed; or

(ii) in the premises of any station house, whether or not situated in the police station, to whom he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as, a police officer; or

(b) Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child –

(i) within the limits of the area to which the person is deployed; or

(ii) in any areas under the command of the forces or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where the said person is known or identified as a member of the security or armed forces; or

(c) Whoever being a public servant commits penetrative sexual assault on a child; or

(d) Whoever being on the management or on the staff of a jail, remand home, protected home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or

(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or

(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or

(g) whoever commits gang penetrative sexual assault on a child.

Explanation- When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or

(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or

(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j) whoever commits penetrative sexual assault on a child, which-

(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Medical Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or

(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;

(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or

(k) whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child; or

(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or

(m) whoever commits penetrative sexual assault on a child below twelve years; or

(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or

(o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or

(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or

(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or

(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or

(s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or

(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

(u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.”

“6. Punishment for aggravated penetrative sexual assault- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.”

The above set of provisions under the POCSO Act is a clear indication of the gender bias, similar to the law of rape under the IPC. The pronoun used for the accused is “he”, thus, again, only a male can be booked for the offences under the relevant provisions of the POCSO Act. Though, unlike rape, the victim under the POCSO Act can be any child irrespective of the gender, the accused still can only be a male and females are again given a protective shield, for reasons unknown. Saying that females do not subject children to forceful sexual assault would be untrue. Incidents of such child sexual victimisation by females has been observed and witnessed. This might come as an eye opener but child sexual abuse is at least 10% more among boys than girls. Such male child sexual abuse cases are just not reported. In August 2013, a boy was sodomised by his seniors at a four-day Scouts and Guides camp in Vasco, Goa. “Parents are not as careful about their male children as they are about their girl children”, said Meena K. Jain, the then chairperson of the Child Welfare Committee. She stated that cases of boys undergoing abuse is much higher than girls, but not reported at all mostly due to ignorance of parents. The then Joint Commissioner of Police (Crime) Hemant Nimbhalkar joined saying that boys aged 8-12 years were most vulnerable to sexual abuse and parents should watch out for their unwanted attachment towards certain elders. Since, opposite sexes attract, most often than not, the perpetrator in case of a male child sexual abuse is a woman. However, the child sexual abuse law in India, just like the law of rape, has restricted itself only to male perpetrators, thereby indicating the narrow and age-old mind set of the legislators. Mr. Hemant added, “The psycho-social setup completely sidelines the protection of boys and ‘virginity’ is always associated with girls only”. Ms. Meena Jain said, “As much as parents take pains to teach their daughters that they could be sexually abused and molested, the boy child is never informed. The concept of child sexual abuse is highly gender-biased. Only the girl child is focused upon, as she is the key reproductive individual.” Further, she pointed out: “When abused, the male child can be as physically hurt and traumatised as a girl child.” Dr. John Vijay Sagar, Associate Professor, Child and Adolescent Psychiatry, National Institute of Mental Health and Neurosciences (NIMHANS) while pointing towards the increasing number of juveniles sexually abusing boys, said, “While it is assumed that a girl child is unsafe, some parents also hush it up when their male child may complain about sexual abuse because they think of the consequence, which is that a girl child may become pregnant, while a boy won’t.” This indicates the mindset of people who are more afraid of the social tag rather than the individual who is being sexually abused. God has gifted women with the blessing of reproduction, in no way means that a boy’s or a man’s sexuality is any less vulnerable or less pious. He further added, “When parents take a stance of disbelief, children are discouraged from disclosing their bad experiences.” In most cases the perpetrator is known to the child. “the abusers are not all men”, Ms. Jain warned. “As boy children may not think it appropriate to cry, and are less open about their feelings, they may not open up to their parents”, she added. From childhood, boys are told that “men don’t cry”. Venting out an emotion of distress through eyes in the form of tears is considered a sign of manliness. This comes from the perception that, “Men don’t feel pain” (mard ko dard nahi hota). “Cultural and social reasons force parents to think that protecting a daughter is more important than protecting a son”, according to former DG and IGP S T Ramesh.

These are clear examples of the unexplained gender bias in the laws relating to sexual intercourse in India. Also, since the POCSO Act only looks into the age aspect, a teenage girl below the age of 18, who agrees to have consensual sexual intercourse with a boy may later turn away saying that he raped her and the guy will be booked under the POCSO. But, the vice-versa won’t be true due to the bias definition. Such person can be booked only for sexual assault under the POCSO Act, the quantum of punishment therein being very less as compared to penetrative sexual assault. The relevant provisions are as follows:

“7. Sexual Assault- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

“8. Punishment for sexual assault- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extent to five years, and shall also be liable to fine.”

In a relatively recent case reported from a Kanpur village, a 10 year old boy was hospitalised after a minor girl tried to have forceful sexual activity with him. The incident took place in Kulhauli village of Bidhnu area when the 16 year old girl sweet-talked the boy from her neighbourhood into her house and tried to have sex with him. In the attempt, the boy sustained serious injuries in his private parts and started to bleed. While the boy was undergoing treatment at the Hallet hospital in Kanpur, police said they were perplexed as to under which legal provision shall the case be lodged. “Both the victim and the aggressor are minors, in this case and as a result lodging complaint has become difficult”, said SSP Kanpur Shalabh Mathur. Legal experts said that a case can be lodged under Section 8 of POCSO.

Any sane justification for these provisions cannot be given. Labelling a particular gender as the perpetrator, no matter who the victim is, in cases of sexual violence, is a violation of the principle of equality under the Constitution and can in no way be said to be ‘reasonable’.

Gender bias being one, there are other loopholes as well in POCSO as compiled by a group of students from the Department of Psychiatry, National Institute of Mental Health and Neuro Sciences, Bengaluru, which are listed below:

(a) Medical examination: Section 27(2) of the POCSO mandates that in case of a female child/adolescent victim, the medical examination should be done by a female doctor. However, the law mandates the available medical officer to provide emergency medical care. On the other hand, the Criminal Law (Amendment) Act, 2012, Section 166A IPC, mandates the government medical officer on duty to examine the rape victim without fail. This conflicting legal position creeps in when a female doctor is not available.

(b) Treatment cost: The law casts an obligation on the medial fraternity and establishment to provide free medical care to survivors of sexual violence. If there are no proper facilities or it involves a costly procedure, the State should take responsibility of reimbursing the cost otherwise hospital may provide substandard medical treatment procedure or may deprive the survivor from comprehensive treatment.

(c) Consented sexual intimacy: Sexual contact between two adolescents or between an adolescent and an adult are considered illegal under the POCSO, because no exception has been granted under it which makes consensual sexual intercourse between teenagers, legal, irrespective of the gender or marriage or age of the victim or the accused. Moreover, the recent amendment to the IPC increasing the age of consent from 16 to 18, thereby colouring all sexual acts under that age as rape, irrespective of consent, will only prove as sparkling the fire. Also, a serious repercussion is that gynaecologists need to report all the medical termination of pregnancy cases, i.e. MTP cases performed on children (individuals below 18 years), as per the Medical Termination of Pregnancy Act (MTPA).

(d) Child marriage: Child marriage and consummation of the same are considered illegal for the purposes of POCSO. In India, even though child marriage is prohibited under the secular law, it enjoys sanction under certain personal laws, thereby creating a deadlock between secular laws and personal laws. The definition of “child” as per Section 2(d) includes any person below the age of 18. Age is the only criteria under POCSO. Sections 4 and 6 punish the offenders for having such sexual intercourse with a “child”. However, the consent clause is not included here unlike in case of rape under IPC. Thus, even consensual sexual intercourse is punishable. According to some personal laws, marriage is valid with a person below the age of 18. According to the personal laws, marriage being the only means of legalising sexual intercourse between two individuals, such physical relations between a husband and wife who have not attained majority according to the Indian legal standards is perfectly valid as per the personal laws. But, the POCSO doesn’t make any such exception and draws a uniform line solely on the ground of age. The conflict between the two laws is likely to arise, wherein one allows ‘child’ marriage, but the other criminalises it, ‘child’ being one determined on the basis of a certain age. Moreover, the problem worsens by the presence of another conflicting law. The Prohibition of Child Marriage Act, 2006 defines a ‘child’ as one who has not completed the age of 21 in case of males and the age of 18 in case of females. Where on one hand, the POCSO does not distinguish between a male and a female child, the 2006 Act draws this distinction, thus leading to a conflict. Though the 2006 Act makes such marriage as voidable at the instance of either of the parties, the three laws viz., the 2006 Act, POCSO and the personal laws, combined lead to a ruckus due to the conflicting legal prepositions.

(e) Training: There is an urgent need to train medical professionals, teachers, advocates and law enforcing agencies in the POCSO. Research, information, monitoring and sensitizing the public are the biggest challenges. Training all the stakeholders is one of the important variables in providing comprehensive care and justice. There is also an urgent need to train all the medical undergraduates and primary health care doctors in providing child-friendly interview, structured assessment, collecting evidence, prophylaxis for sexually transmitted diseases (i.e. STDs) and HIV, family counselling and regular follow up.

(f) Rule of mental health professionals: The definitive signs of genital trauma are seldom seen in cases of child sexual abuse. Hence, the evaluation of victims of child sexual abuse requires special skills and techniques in history taking, forensic interviewing and medical examination. The role of mental health professionals is crucial vis-à-vis interviewing the child in a court of law. Child sexual abuse can result in both short term as well as long term harmful mental health impact. Mental health professionals need to be involved in follow up care of the victim with regard to emergence of psychiatric disorders, by providing individual counselling, family therapy and rehabilitation.

(g) Reporting: It is well known that the cases of child sexual abuse are usually not reported. Further, knowing and reporting child sexual abuse is highly difficult and a very personal decision for many family members and also for survivors. Both feel embarrassed and ashamed bearing the guilt, anger, frustration and emotional turmoil of the act. The fear of re-victimization because of medical examination, criminal justice system and poorly informed society keeps them silent and undergo torture for long duration.

The legislation is certainly a welcoming step to curb child sexual abuse, but like any other law, there are certain drawbacks of the POCSO as well and removal of the same will only prove beneficial.

At the outset it can be concluded that the POCSO is a defective law and its shortcomings should be removed to make it a more effective law. The labelling of the accused as belonging to a specific gender alone is unjust and is based on the same age old mind set as the framers of the IPC had in the 19th century. Saying that woman do not subject young male children to such sexual abuse would be untrue and far from reality. Since opposite sexes attract, it is quite possible for a woman to be a perpetrator in case of a male child sexual abuse. Female perpetrators can be booked only for the offence of ‘sexual assault’ under Section 8, wherein the punishment prescribed is imprisonment for maximum 5 years. Cases of women and young girls subjecting male children to forceful sexual activity have been witnessed in the recent past. Apart from the gender bias nature of the law, the 2012 law suffers from other shortcomings as well. Section 27(2) of POCSO mandates that in case of a female child or adolescent victim, the medical examination should be done by a female doctor while Section 166A of IPC which mandates the government medical officer on duty to examine the rape victim without fail, irrespective of the gender of the officer while. The provisions conflict when a female doctor is not available. This must be resolved and the law must be amended suitably. Also, the treatment cost is most likely expensive for the victim’s family and hence, the state must bear it when the former cannot. Also the law fails to recognise consensual sexual intercourse between two adolescents or between an adolescent and an adult with an age gap of less than 3 years as a non-criminal act, unlike the US. The provisions for the same must be made. Marriage between people below the age of 18 which is considered illegal under the Protection of Children from Sexual Offences Act, 2012, is legal according to various personal laws. Hence, sexual intercourse between such married individuals is a crime as per the POCSO but valid according to the personal laws. This conflict must be resolved to establish a uniform law across religious lines. To add to this is another legislation i.e., the Prohibition of Child Marriage Act, 2006 that draws a distinction on the grounds of age between a male (>=21 years) and a female (>=18 years) for the validation of their marriage. Though section 3 of the 2006 Act makes such marriage as ‘voidable’ at the instance of the parties, it has given the ambit of misuse at the hands of either of the parties who when bored in the matrimonial relation can just walk out of it and claim that they were sexually assaulted as per the provisions of the POCSO, not to mention that the Act does not talk about ‘consent’. The Parliament must suitably and conjunctively amend the 2006 Act, POCSO and the personal laws, to effectuate the three without any conflict. Also, there is a need to train medical professionals, teachers, advocates and law enforcing agencies and thus, provisions for the same must be made under the Act. Moreover, definitive signs of genital trauma are seldom seen in cases of child sexual abuse. The evaluation of victims of child sexual abuse requires special skills and techniques in history taking, forensic interviewing and medical examination. Hence, mental health professionals need to be involved in follow-up care of the victim with regard to emergence of psychiatric disorders, by providing individual counselling, family therapy and rehabilitation. Reporting of such child sexual abuse is seldom done in lieu of protecting the image of the child and his family. However, such sexual abuse must be reported, without disclosing the details about the child and the family, so that the perpetrators of the crime feel the heat which shall in turn prove deterrent to like-minded individuals.

The POCSO is a good legislation. However, the certain shortcomings in the law are refuting its purpose and must be removed to effectuate the law in its true sense.

End-Notes
# Study “Recovery and Healing from Incest, Voices from the Silent Zone” (New Delhi 1998), talked about in Anjali Singh, “Breaking the silence finally on child sexual abuse” Citizen News Service, Mar. 23, 2013, available at: http://www.scoop.co.nz/stories/WO1303/S00236/breaking-the-silence-finally-on-child-sexual-abuse.htm (last visited on May 25, 2016).
# Ministry of Women and Child Development, Govt. of India, Study on Child Abuse: India 2007.
# Cambridge Dictionary, available at: http://dictionary.cambridge.org/ (last visited on April 3, 2016).
# B.V. Subrahmanyam (ed.), Modi’s Medical Jurisprudence and Technology 495 (Lexis Nexis Butterworths Wadhwa, Nagpur, 2011).
# AIR 2005 SC 1000.
# Decided on 17.8.2013 by Dharmesh Sharma, ASJ01, New Delhi District, Patiala House Courts, New Delhi SC No. 66/13.
# Sharadha Kalyanam, “The other side of sexual abuse: More boys victims”, Indian Express, Bangalore, Oct. 12, 2013.
# “Uttar Pradesh: 10-yr-old boy injured after girl forces him to have sex”, Indian Express, Lucknow, Jun. 28, 2016.
# Sydney Moirangthem, Naveen C. Kumar, and Suresh Badamath, “Child Sexual Abuse: Issues and concerns” 1-3, Indian J Med Res 142 (Jul. 2015).
# The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971).
# The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s. 2(d).
# For instance, the Muslim personal law allows marriage once a person attains age of puberty.
# The Prohibition of Child Marriage Act, 2006 (Act 6 of 2007).
# Id., s. 3

Follow the Procedure Below To Submit Your Articles

Submit your Article by using our online form Click here
Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
For Further Details Contact: editor@legalserviceindia.com

File Your Copyright - Right Now!