Sexual Offences Against Women And Children Committed Within Domestic Domain
"The seeds of success in every nation on Earth are best planted in women
and children."- Joyce Banda
A man's lust in itself cannot lead him to commit a prohibited act unless there is something more than that, the presence of a guilty mind. It's like putting a match in gunpowder. As the undesirable nature of the environment itself does not cause crime, but intention of the predator may. Some people are predisposed to such circumstances because of mental deficiencies or lack of organization of personality traits.
Causes behind sexual offences
The factors responsible for the increase in crime against women and children can be social, economic, cultural and biological. It is a complex combination of objective and legal factors.
These causes can be examined as follows:
Social causes
Social causes of crime against women& children include the low status of the victims due to social conditioning, patriarchal social structures, unhealthy household environments, lack of adequate education, broken homes, overcrowded rooms, etc. The causes include too many people, too little discipline, etc. Influences such as parental affection, imprisonment, drunkenness, immorality, cruelty, drug addiction, disease and the modern atmosphere of tolerance.
Because it is unresponsive to her plight, the legal system is a reflection of how society views women. - The laws passed to protect women have a number of flaws. In applying these laws, the courts have a conservative, rigid, and traditional attitude. Because of how poorly these laws are enforced, offenders appear to have lost all respect for the law. Because they are not apprehended, they become more brazen and believe that they can commit crimes without being found out.
There is no shortage of crimes, even very brutal ones against women that made the front pages of the newspapers and stirred. the public outcry that followed did not assist the long arm of the law in delivering justice to the victims, despite the fact that it served as the nation's conscience. It is abundantly clear from the People's Union for Democratic Rights' study of 14 cases of custodial rapes that occurred in Delhi between 1988 and 1990 that the offenders almost always escape punishment.
Inefficiency of the Legal Machinery
The police are the initial administrative body for the criminal justice system and are regarded as the first line of defense against crimes. They serve as both the entry point for new offenders and the point of re-entry for those who have been unsuccessful in other subsystems. In terms of social defense, they occupy a key position, probably second only to the family and other important social groups. No society can exist or function without an organized police force, but in every region of the world, the police have fallen short.
Sexual Offences under the IPC-Section 375-377
Throughout history, nearly all cultures and religions have regarded sexual offenses as crimes. It is a serious violation of the person's human rights. The victim's physical and mental health suffers severe, irreparable harm as a result of sexual violence, which is how sexual offenses are effectively committed. The human race may have made progress in terms of material and professional development, but it is happening at the expense of a person's integrity and temperament.
This write up will cover the extent of the provisions correlated to sexual offences under the Indian Penal Code, 1860[1]. The main goal of this article is to understand the phenomenon of sexual offenses in terms of the forces at play during their commission, their magnitude, prevalence, and potential elimination.
Analysis of sexual offences under Indian Penal Code
Chapter XVI section 375 to 377 of the Indian Penal Code,1860 deals with sex related offences.[2]
Rape against minors, or more specifically, against children under the age of 10, is quickly spreading throughout the Capital. These incidents show the complete degeneration of values brought about by the criminals' political patronage. Such cases have been dragged out in court for far too long due to careless prosecution. There are reasons to believe that at least three sexual offenses go unreported for every one that is reported, supporting the idea that the problem is much more widespread.
People claim that the fact that rape victims are approaching the police may be seen as a positive development, but the growing number of cases paints a disturbing social development.
Approximately 70% of all rape victims are minors, a percentage that has eerily remained fairly constant since 1991 despite an overall rise in the number of rape cases since then.
The statistics of each passing year are shocking in how frequently rapes of minors occur. Incredibly, 235 minors were raped in 1993 as opposed to just 167 in 1991. Although many cases go unreported, 158 cases involving minors had already been reported from the city as of August 1994. The victim is either too traumatized by the event or the parents choose to cover up the incident out of concern for the child's future.
It's a never-ending cycle. The rapist is aware that there is a good chance his crime against a minor won't be discovered. This is a key motivator because few people approach the police for fear of unfavorable publicity and unnecessary harrassment.
Research Methodology
The present research work is limited to doctrinal/non-empirical research as this research will be qualitative and comprise of data collected from various sources such as relevant Law, Law Reports, and Books, Journal, Articles, Newspapers and Statistics. Internet data will also be referred to for its value of being up to date with happenings around the world.
Objectives Of The Study
The present research is an effort to make in depth study of various facets of the problem of sexual abuse and exploitation of children in India and at International level. Analytical study of Constitutional provisions, statutory provisions, recommendations of Law Commission and observations and directions of Supreme Court have also been undertaken with the object to suggest suitable amendments to the existing legal provisions and to enact new laws relating to the protection of children from sexual offences in India. The broad objectives of the present research study are:
Hypothesis
The hypothesis of the research is that women are the weaker section of the society, due to illiteracy, financial dependence, social taboos, etc., consequently easily suppressed and exploited. The concept of �women as property� is prevalent in patriarchal society, thereby dictating its utility, as it pleases to theirconscience. Sexual offence is considered to be the way to flaunt dominance over women by men.
The legal regime prevalent, are inadequate in shielding the women against the sexual offences and the accused are easilylet-off.
Majority of children are becoming the victim of the sexual offences due to various reasons e.g. social, economic, personal etc. But these offences are not reported due to family pressure and social stigma. Other cases fail owing to lack of evidence or witnesses turning hostile. There are number of legislations in India dealing with provisions to control the sexual offences.
Another specific law entitled the Protection of Children from Sexual Offences Act, 2012 has been passed by Indian legislature. This law is completely meant for the protection of children and it explains various types/categories of sexual offences against children and provides stringent punishment, but still sexual offences against children are on the rise in our country due to non-enforcement of the existing law, delay in investigation etc.
Literature Review
Books
Author, Mahendra K. Sharma, in his book, �Minimum Sentencing for Offences in India - Law and Policy�, Published in 1996 by Deep and Deep Publications, New Delhi, in his book the author has intended to assess the impact of the minimum punishment law on the incidence of socio-economic offences he made critical analysis of both statutory and case laws on the subject.
Author, Terry Thomas, in his book, �Policing Sexual Offences and Sex Offenders�, Published in 2016 by Macmillan Publishers Ltd., London, and the book of the author is about the work of the police with people who are suspected of committing or have committed sexual offence. In his work he mentioned that the police have been criticized as being a largely male dominated organization lacking the required sensitivity needed to listen to people, who were often women and children.
Dalbir Bharti in her book �Women and the Law�, Published in 2008 by S.B. Nangia, APH Publishing Corporation, New Delhi, in her book she wrote that on the one side our people give the best education to their sons and daughters and send them out to work in developed countries, but on the other side a large number of people, in blatant violation of the law, marry of their sons and daughters during their childhood and block their future. When we argue about our country's numerous merits and virtues, the examples of child marriages, dowry deaths, discrimination against women and their sexual harassment neutralize our claims.
Dr. VidyadeviPatil in her book, �Social Problems in India� Published by Laxmi Book Publication, Sholapur, Maharashtra in 2015, quoting official data he pointed out that Official sources show that rape cases in India has doubled between 1990 and 2008.
In most of the rape cases, the culprit is known to the victim. According to her Criminal activity is strongly associated with a victim's behavior. A victim's reaction can sometimes provoke an offender: however, appropriate� behavior may prevent a criminal act or at least minimize its impact.
According to scientific literature, the likelihood of becoming a victim is related to the characteristics or qualities of a person, a social role or a social situation that provoke or facilitate criminal behavior: personal characteristics such as individual or family status, financial prosperity, and safety, as well as logistical characteristics such as the time and place in which a confrontation occurs, can also determine the extent of victimization. He is of the view that People may become accidental victims, as assault is often preceded by heated discussion.
Articles:
David K. Carson, Jennifer M. Foster and Aparajita Chowdhury, in their Article titled as �Sexual Abuse of Children and youth in India: A Anthropological Perspective�, 2016 wrote that there are numerous, large-scale obstacles to addressing child abuse and neglect in India. Poverty is a major factor which impedes families'ability to provide adequate Shelter, medical care, and nutrition for their children, which at times results in child Abandonment.
Rustum Singh Thakur in his article titled as �An Eye for an eye will turn the whole world blind - in Special Context to reformative theory of punishment� dated 25 Jan., 2010, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1955438, wrote that an eye for an eye will make the whole world blind� he pointed out that reform in the deterrent sense implied that through being punished the offender recognized his guilt and wished to change.
The reformative theory aims at rehabilitating the offender to the norms of the society i.e. into law- abiding member. It condemns all kinds of corporal punishments. Theory works stupendously for the correction of juveniles and first time criminals, but in case of hardened criminals it is of nouse.
Sexual assault prevention and awareness center, University of Miching, published an Article on its website https://sapac.umich.edu/article/196 title as �Understanding the perpetrator� in Jan. 2018, According to their study there is no �typical profile� of a rapist, but they share some common characteristics.
Sex offenders are experts in rationalizing their behavior. It pointed out that Pornography consumption was common among the men in the sample and may further add to the risk of sexual aggression. Specific violent or rape-theme content of the pornography has been associated with propensity to rape and pro - rape attitudes in laboratory analogues, as well as from self-reports of men who have admitted raping.
It further states that although the associations between rape and pornography remains controversial, a number of studies have linked violent pornography and sexual arousal to rape depictions, violent sexual fantasies, rape callousness, and woman abuse.
Shallu B.A. (2010) in her article has written that delay in disposal of mercy petition is one of the points to be considered for delays in execution of death sentence. She pointed that the Rajiv Gandhi assignation case was one of its kind where the convicts are still alive as the president has not taken any decision on mercy petition quoting the Constitution of India she states that no one shall deprived of his life except to procedure established by law under Article 21. According to her, delay in the mercy petition disposal against the principle of rule of law.
The Preamble to the Indian Constitution guarantees social, economic and political justice which too include gender justice, liberty of thought, expression, belief, faith and worship; equality of status and opportunity that would again reinforce the theory of equality; while fraternity enjoins citizens to treat each other with respect and dignity, regardless of gender.[17] The fundamental rights to life with human dignity[18], to equality[19], and to work in ones chosen profession or trade[20] inherently include protection from sexual harassmentThe Constitution unquestionably protects women's fundamental rights, according to this position.
The equality of women and children is firmly established in Article 14 as well as Article 15(1) of the Constitution, which gives the State the ability to make special provisions for them. Note that women are treated equally under Article 21. The right to education is guaranteed by Article 21A and is applicable to "all children," regardless of gender. Forced labor and human trafficking are both prohibited by Article 23. A child under the age of 14 may not be employed in a factory, mine, or other hazardous occupation, according to Article 24 of the Constitution. Additionally, Article 51A (e) states that every Indian citizen has a responsibility to renounce behaviors that are disrespectful of women's dignity. The Indian Supreme Court acknowledged it.
The Code of Criminal Procedure, 1973 Section 54A
Identification of Person Arrested
When a person is detained after being charged with a crime and his or her identification by another person or persons is deemed necessary for the investigation of that crime, the court with jurisdiction may, at the request of the officer in charge of the local police station, order that the person detained submit to identification by any person or persons in the manner the court may deem appropriate.[21]
-However, if the person identifying the person arrested has a mental or physical disability, the identification process must be overseen by a judicial magistrate who will take the necessary precautions to ensure that the person identifying the person arrested uses techniques that the person is comfortable with. Furthermore, the identification process must be video graphed if the person identifying the arrested person has a physical or mental disability.[22]
Section 154(1)
Information in Cognizable Cases
When given orally to a police officer in charge, every piece of information pertaining to the commission of a crime must be reduced to writing by him or under his supervision and read to the informant. Every such piece of information, whether given in writing or reduced to writing as aforesaid, must also be signed by the person giving it, and the substance of it must be recorded in a book to be kept by such officer in whatever format the State Government may specify.[23]
-Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 3548, Section 354C, Section 3540, Section 376, Section 376A, Section 3768, Section 376C, Section 45 of 1860. 3760, Section 376E or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer.
Provided further that:
Any police officer conducting an investigation pursuant to this Chapter may, by order in writing, require the presence before him of any person within the jurisdiction of his own or any adjacent station who, based on the information provided or otherwise, appears to be familiar with the facts and circumstances of the case; and such person shall appear as required.
With the caveat that neither a woman nor a male under the age of fifteen years old may be required to attend any location other than where they currently reside.[24]
In Section 160 of the Code of Criminal Procedure, in Sub-section (1), in the proviso, for the words -under the age of fifteen years or woman‖, the words -under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person‖ is substituted.
Section 161 (3)
Examination of witnesses by police
The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.[25]
-Provided further that the statement of a woman against whom an offence under Section 354, Section 354A, Section 3548, Section 354C, Section 3540, Section 376, Section 376A, Section 3768, Section 376C, Section 3760, Section 376E or Section 509 of 45 of 1860. The Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer‖.
Section 164 (5)
Recording of confessions and statements
Any statement (other than a confession) made under Sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.[26] -(5A) (a)
In cases punishable under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Sub-section (1) or Sub-section (2) of SECTION 376, Section 376 A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the 45 of 1860. Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been Committed in the manner prescribed in Sub-section (5), as soon as the commission of the offence is brought to the notice of the police.
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.
(B) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in Section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.
The injustices may many children suffer are unspeakable and occurs in all corners of the globe in all walks of life. In a civilised society, the importance of child welfare cannot be under estimated because the welfare of the entire community, its growth and development depends on the health and well being of its children. Children are a supremely important national asset and well being of the nation depends on how its children grow and develop. A child is not expected to achieve a full physical and mental growth unless a proper environment, adequate opportunities and sufficient facilities are provided.
Neglecting the children means loss to the society as a whole. If children are deprived of their childhood socially, economically, physically and mentally, the nations get deprived of their potential human resources for social progress, economic empowerment, peace and order, the social stability and good citizens. Therefore, children require special care and protection because of their tender age, physical and mental faculties. It is the duty on the part of each member of the society to protect the children from every kind of damaging effect. It is the birth right of every child, who cries for justice from every nook and corner of the globe.
It is the primary function of the State to protect person and property and to promote the welfare of the people in the country. Moreover, it is the responsibility of the state to protect children from social injustice and forms of exploitation under the Directive Principles of the State Policy of the Indian Constitution.[29] The Fundamental Rights must not be ignored by the State on a specious argument of paucity of resources, when the rich continue to thrive and wasteful expenditure of public monies is more than evident. In fact, the provision of Article 15(3) of the Constitution, being an enabling provision, is a clear indication of the obligation of the State to adopt and strictly enforce preferential measures in relation to matters affecting women andchildren.10
Administration of justice is the prime responsibility of the State which is maintained within the State by the agency of law. It means justice according to the law. There are two main highest organs of the judiciary in the Indian Legal System. Supreme Court is the Apex Court of the Country and all the decisions of it are binding upon the all lower courts of the nation, whereas within the States, High Court is the highest Court and all the lower Courts within the state are bound by the decision of it.
In Indian scenario the children require proper care, love, affection and nourishment, but on account of their vulnerability and dependence, they are physically, mentally and sexually abused and ill-treated. Sexual abuse of children is the worst kind of crime. There are many constitutional and other legal provisions which protect the rights of the children and prohibit sexual abuse against them in India.
Undoubtedly, children are future of the country and need special protection because of physical and mental faculties they possess. There are many constitutional provisions relating to the welfare of children.
There are many provisions mentioned under Fundamental Rights and Directive Principles of the State Policy for the protection of the rights of children which are as following:
Right to Equality (Article 14):
It provides, �The State shall not deny to any person equality before the law or equal protection of laws within the territory of India.� The obligation imposed on the State by this Article is for the benefit of all people, within the territory of India. This Article provides two fold equality to every citizen of the country.
Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. It means absence of any special privileges for any particular person. It also strikes at arbitrary power on the part of the Government.
Equal Protection of Laws is positive in operation ensuring equality of treatment to all in equal circumstances. Equality secured by Article 14 does not mean absolute equality, which is a human impossibility. It does not mean that the same laws should apply to all persons. All persons are not equal by their nature, attainment or circumstances.
The varying needs of different classes of persons often require separate treatment.[30] From the very nature of the society, there should be different laws, applying differently in different places. Application of the same laws uniformly to all, under different circumstances, may result in violation of the principle of equality.[31] The classification permitted by this article rests upon reasonable grounds of distinction. It must not be �arbitrary, artificial or evasive.� It must be reasonable classification.
Prohibition of Discrimination against Citizens (Article 15):
This Article contains provisions for a particular application of the general principle of �equality of treatment' embodied in Article 14. It prohibits discrimination on the ground only of religion, race, caste, sex, and place of birth or any of them.
This Article also provides that:
�Nothing in this Article shall prevent the State from making any special provision for women and children.�[32] This Article casts a duty on the State to make special provisions for the welfare and uplftment of the women and children. This clause (3) of Article 15 is an exception to the rule against discrimination embodied in Article 15.
While, article 15(1) and 15(2) prohibit discrimination on the ground of sex, clause (3) enables the State to confer special rights upon women and children.
Right to Education (Article 21-A):
It provides that, �The State shall provide free and compulsory education to all the children of the age of 6 to 14 years in such manner as the State may, by law, determine.�
Even before the insertion of Article 21-A, new dimension were given to the fundamental right to life and personal liberty and child's right to education was one of the expanded meanings given by the courts to enable the citizen to enforce this right as a fundamental right. Under Article 41 and 45 the State is empowered to make effective provisions for right to education within the time limit of 10 years from the date of the commencement of the Constitution of India. Article 46 mandates the State to promote with special care the education interest of the weaker section of the society.
Certain Principles of Policy to be followed by the State (Article 39):
Article 39 (f) makes obligatory for the State to direct its policy towards security that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 39 of the Constitution specifically requires the State to ensure for protection of children and child care. Right to live with human dignity free from exploitation enshrined in Article 21 derives its life breath from the Directive Principles of the State Policy and particularly clause (e)[33] and the Article 39.
These Articles prohibit all kinds of exploitation against the children. Article 37 casts a duty on the State to raise the level of nutrition and the standard of living and to improve public health. The objectives reflect the great anxiety of the Constitution makers to protect She safeguard the interest, welfare of ourcountry.
The Protection of Children from Sexual Offences Act, 2012:
The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provision for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.
It is, in itself a remarkable positive step in recognizing not only the issues with regard to child sexual abuse but also takes intricate step to tackle this enraging social issue. This Act contains nine chapters and forty six sections and is expected that it will do the needful. The Act provides for protection to all children under the age of eighteen years.
The offences of sexual assault, sexual harassment and pornography have been clearly explained. The Act also provides for stringent punishments for such offences which have been graded as per the gravity of the offence. The Punishments range from simple to rigorous imprisonment of varying periods. There is also provision for time, which is to be decided by the Court.
The Act further provides for the establishment of special courts for trial of offences as per the provisions, keeping the best interest of the child as of paramount importance at every stage of the judicial process. This Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences.
It is also recognized that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalised. Thus an attempt to commit an offence as prescribed under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offences. Punishment for abetment of the offence is also the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
For the offence of penetrative sexual assault, aggravated penetrative sexual assault, simple sexual assault and aggravated sexual assault, the burden of proof is shifted on the accused. The provision has been made keeping in view the greater vulnerability and innocence of children and to prevent misuse of the law, punishment has been provided for making false complaint or providing false information with malicious intent.
Further, the media has been barred from disclosing the identity of the child without the permission of the Special Court. For the breach of this provision, punishment is also prescribed.
This Act casts a duty on the Central and State Government to spread awareness through media including television, radio, and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
The National Commission for the Protection of Child Rights (NCPCR) and the StateCommission for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.This Act contains nine chapter and forty six sections. It is hoped that this Act will cater the need to protect the helpless children against the sexual abuse.
Conclusion
Every single individual grows up with innocence, being a human everyone is born equal but when it comes to the female sex then the sociological structure of the society views its differently not only in India but all over the world. Therefore under the social structure and norms every women that's grows up cherishing her dreams of life with physical purity or chastity and to have a happy and prosperous family life. And the same is not changed till today, though sexual ethics have changed in the society.
The evident of our being in this world, is result of the presence of women, as she is the only, who is blessed by the divine to give birth. Though, she requires the male partner in the process but even then she is the only one, which makes our presence successful. That's why she is called the mother� of mankind. Her value and dignity is preserved at the highest pedestal. Thus this world owes to the women.
When we talk about the human development the role and achievements of men are mostly on count whereas the role and achievements of women don't get enough importance. Since from the early times many fall victim to gender selective violence, as a result of which they do not receive the same amount of food and medical attention as their brothers, fathers and husbands.
Rather they have been abused mentally and sexually and are the victims of honour killings' and to acid attacks. An estimated 5,000 women are burnt every year for materialistic needs like dowry and a number of women are killed within their own walls through domestic violence. Millions are trafficked and sold like cattle rape and sexual exploitation are the other horrible physical and mental trauma to them.
The reason for such gross discrimination is embedded in the dichotomous patriarchal view of the society that the good woman is a women who lives under the protection of her male partner, ensconced in her home, and does not go out after dark or visit unsafe places; even streets and public parks and who deviates from this norm is bad and assumed to be sexually available because of being unprotected.
By this logic, the woman who gets sexually assaulted is automatically proven to be bad or immoral. And where a married woman gets raped or sexually assaulted it results in the breakup of home and the family as the raped wife is sure to be divorced by her husband. But the rapes within marriage are categorized differently because in such cases the position of women is that that she is her husband sexual property.
Practically all victims of sexual violence who after the assault saw law enforcement agencies as their protector or helping hand and with this belief whenever they lodge a complaint with them they meet with condemnatory attitude which is also shared by the judiciary, the police interrogation and court trial amount to a second and a �public rape� in an emotional sense, which traumatizes the victim all over again and serves as a strong deterrent for rape victims in their pursuit of justice. The strong male bias of the police and the judiciary makes it very difficult to prove that it is a case of rape.
Children are the actual assets and they are the future of a nation and also future of the world. If there is no proper growth of the child today the future of the country will be dark. It is the duty of every generation to bring up children in a better and protective way. Today's children are to maintain the honour and prestige of the nation. States will have to pay a special attention to the protection, care and development of the children.
Despite multiple Constitutional, Penal and Legislative Provisions sexual abuse of children is on the increase. There is no let up in the immoral acts against children. The situation is getting alarming day by day. Children do not feel safe both at home and outside. it is imperative on the part of the government and judicial agencies to frame more stringent laws so that the crimes against children may not only be curbed but almost abolished. It may be added here that only making of laws will not serve the purpose but their implementation both in letter and spirit is equally necessary.
he problem needs to be tackled at the societal level also. The people should be enlightened about the need of cultivation of sound moral values. Mass should be pressed to educate society about the care and concern of children for the health and happiness of society and humanity at large. Here are some suggestions which can definitely go a long way in removing legal gaps and undue harassment of the victims of sexual offences at different levels.
Bibliography
Books
1. A. Ashworth and J. Horder, Principles of Criminal Law, 340 - 341(Oxford University Press, 7th Ed, 2009,UK).
2. Dr. RukmaniKrishnamurty, Forensic Science in Crime Investigation, 30, (S & S Books, 1stedn, 2011, New Delhi ).
3. M.K. Gandhi, Speeches and Writings (G.A. Natesan& Company, Madras, 1933).
4. Kohli, A.S., Human Rights and Social Work: Issues, Challenges and Response,Kanishka Publishers, Distributors, New Delhi, (2004).
5. KumariVed ,The Juvenile Justice System in India, Oxford University Press, New Delhi (2004).
6. LataSuman, Kant Anjani, Child and the Law, APH Publishing Corp., New Delhi (2007).
Articles
Statutes
Sexual Offences And Their Genesis
Sexual offences are crimes involving any sexual act directed against a person's consent including instances where a person is unable to give consent. As per NCRB Report 2021,over 96% rapes In India were committed by persons known to the victims. These are caused by a combination of mutually stimulating and complimentary factors.A man's lust in itself cannot lead him to commit a prohibited act unless there is something more than that, the presence of a guilty mind. It's like putting a match in gunpowder. As the undesirable nature of the environment itself does not cause crime, but intention of the predator may. Some people are predisposed to such circumstances because of mental deficiencies or lack of organization of personality traits.
Causes behind sexual offences
The factors responsible for the increase in crime against women and children can be social, economic, cultural and biological. It is a complex combination of objective and legal factors.
These causes can be examined as follows:
Social causes
Social causes of crime against women& children include the low status of the victims due to social conditioning, patriarchal social structures, unhealthy household environments, lack of adequate education, broken homes, overcrowded rooms, etc. The causes include too many people, too little discipline, etc. Influences such as parental affection, imprisonment, drunkenness, immorality, cruelty, drug addiction, disease and the modern atmosphere of tolerance.
- Patriarchal Structure of Society & Social Conditioning
Indian society is mostly male dominated. A man occupies a superior position and a woman is only an appendage to him. Women are never independent beings, but are "first daughters, then wives, and finally mothers to men". Women are conditioned to be submissive.Discrimination against girls begins the moment the child is born and is perpetuated and reinforced through the process of discriminatory socialization. When it comes to work and education, the difference in gender roles is clear. It convinces every woman of her subordinate status.
Conditioning is similar in other areas.. If a boy went to a prostitute, it must be his wife's fault for failing to satisfy him. If he rapes a woman or minor, the latter would have seduced him, if he has been an alcoholic or drug addict before marriage, it was also his wife's duty to dissuade him from it. Thus victims can always be proven guilty by confused logic and crimes can be committed against women and children with impunity.
Combatting these crimes is difficult because they are not committed by criminals, but by so-called law-abiding people. Moreover, they are mostly one-sided, with no provocation by the victim. They do not depend on the quality or lack of the victim but on other factors beyond control. Sometimes completely unfounded, mistrust is the main reason for brutality.
Although the law of the land may have classified these crimes against women& children as deviant, society does not. The conclusion is always made in advance that "the woman or child must be at fault" whenever such crime is committed. The society will always find a reason to put the blame on the victims and clear the man. The arguments presented indicate that society tolerates these crimes.
We are no longer alarmed by seeing men commit these crimes because we are so accustomed to seeing them. Eve-teasing and other crimes involving sexual harassment of women are regarded as manly behavior. Most of the time, they go unnoticed because they are considered to be unimportant occurrences.
A clear example of such molestation is the case of Neel Kumar v State of Haryana, where the wife of the accused had gone to her parental home leaving behind her 4 year old daughter with her husband. But the next day she received information that her husband had committed rape on their 4 year old daughter. The matter was initially taken up in the Panchayat where the woman was blamed for leaving the minor daughter with her husband.
- Moral and Psychological Environment
The traditional Indian values have undergone rapid change over the past few decades as a result of social pressures associated with urbanization, compelling success ethics, evidence of financial power, and geographic mobility. This has created a moral and psychological environment that is highly crimogenic.
Neel Kumar v State of Haryana (2012) 5 SCC 766 4
The bonds between close families and sacramental marriages are eroding. Joint families, which offered all of its members a physical and emotional safety net, have virtually disintegrated. It played a significant role in teaching children fundamental values like honesty, tolerance, and concern for others. Each family member found a sympathetic audience within the family. The family gives a sense of warmth and intimacy as well as an identity. But what if the fence itself eats the crop?
Nowadays, working parents who walk a fine line between home and work are the hallmark of nuclear families. The domestic family is cut off. When the wife leaves for work, there is no one to look after the kids, making them easy targets. The nuclear family becomes like a circuit that is overloaded when it is forced to rely almost entirely on its own resources. It blows fuses because there are too many demands placed on it. The end result is a state of tension, indiscipline, conflict, and frustration. All of these lessons must be learned the hard way by women& children later in life.
- Cultural Lag and Conflict of Ideas
Although the social realities of life have drastically changed, the traditional view of women's submissive and dependent roles has not. The conventional gender roles of mother, daughter and housewife are institutionalized. Since Indian girls are still socialized and trained for these roles from an early age, the new role of a working woman causes misunderstanding and ambivalence. The woman must decide whether to follow the emerging norms of her occupational roles or her traditional sexual norms. At home, the husband expects her to act like a traditional wife "and merge her identity in her man as a river flowing in the ocean," but outside the home, he expects her to act like a modern woman. Conflicting expectations placed on her as a responsible employee and good housewife cause problems.
Significant changes have also been facilitated by the influence of audio-visual media, knowledge transfer, and education. The self-image of women has begun to improve. The traditional roles of a devoted wife, a perfect mother, and a submissive daughter or daughter-in-law do not satisfy them, and neither does remaining confined to the home. They now recognize their potential and long for freedom of expression. They want to establish their abilities and capacity to compete with men on an equal basis. Home is where men's writ still reigns unopposed when they are unable to demonstrate their superiority at work. To demonstrate their superiority, men don't think twice about using brute force to keep the women and children confined.
Recent evidence from Delhi indicates that the victim and the perpetrator were coworkers in a defense installation on May 12, 1992. Because of her effectiveness, for which she received awards and merit certificates, the girl became very well known, and the man could not stand it. The man felt deceived and was drawn to brothels in the hopes of finding a respectable job and a comfortable lifestyle. There have been cases where stepfathers have raped their daughters, or where parents and relatives have sold girls. Tragedies like war, earthquakes, floods, accidents, etc. which cause families to split apart gives anti-social elements the chance to profit from these sufferings and commit the most heinous crimes. Molestation, rape, and other indecent acts during such turbulent times, are very common and women & children suffer the most. The security forces frequently commit rapes while at war.
- Personal And Psychological
The husband was treated like a god in traditional families. The wife's responsibility was to take care of her husband's needs. He was the center of gravity in the world. What to wear, what to eat for dinner, and other preferences were discussed. If he was happy, the whole house was happy; if he was sad, everything was gloomy.
The woman was raised to serve him and never to challenge his authority. Regardless of whether a husband is violent, immoral or lacking in virtues, Manu, the supreme law-giver, commanded that he must be worshipped and obeyed. However, with a working interrogating woman, the man now finds that his position has been undermined. Realizing he is the only one who can protect his wife and kids has removed the psychological satisfaction he once felt.
The wife's emotional and physical dependence on her husband has decreased as a result of the husband and wife frequently having to live apart due to professional commitments. She is capable of supporting herself and living independently. The psychological fallout from this realization is traumatizing, and man's primal instinct rebels. Too much independence bothers him, and he harbors suspicions and feelings of jealousy. He physically restrains his wife or places obstacles in her path to demonstrate his superiority. The major is that. cause of conflict at home and makes a significant contribution to the upward trend in cruelty and wife beating.
The majority of women and men continue to believe that a woman's primary responsibility is to care for her husband and children. That she should quit her job if it causes her family members any inconvenience, that she is only suitable for certain types of jobs, and that she should only work when she has a pressing need for money.
The woman should be protected her entire life, she should prioritize the needs of her family over her own, and she should take on the domestic role. Imagine the husband treating her children poorly or with contempt because they are reliant on her. They envision her having fun at work with other men. On very serious domestic matters, unemployed men have been discovered beating their wives.
When a husband exhausts all possible avenues for increasing his income but is unsuccessful, his wife continuously makes money demands, or his children insist on making purchases, the husband becomes irritable. Even if she asks for money to run the house in such a stressful situation, he beats her. A businessman reportedly picked up a kitchen knife on May 15, 1992, stabbed his wife, children, and himself after a fire destroyed his shop and left him bankrupt.
He had frequent disagreements as a result of the financial setbacks he experienced following the fire that destroyed his shop. An argument over whether to buy blueberries for the kids led to this stabbing incident.
By means of electronic media, the have-nots are constantly exposed to the lifestyle of the haves. It is clear that effort and hard work do not increase living standards quickly enough to satisfy new aspirations. To satisfy these desires, many men turn to dowry demands in an effort to become wealthy overnight.
- Alcoholism
Alcohol and drug use often lead to criminal activity. With continued use, an intense and uncontrollable craving for alcohol develops. The drug addict must occasionally increase the quantities in order to maintain the alleged satisfaction level. Alcohol's negative effects cause serious harm to the body and mind, making people more likely to commit crimes. The family members suffer from starvation as a result of excessive drinking.
Other negative effects include desertion, beatings, cruelty, and fights between father and child and husband and wife. When intoxicated and emotionally charged, habitual drinkers have even molested their own daughters. This is because when under the influence of drugs or alcohol, a person's normal restraints disappear and their hostile and aggressive fantasies-which are closely linked to their feelings of lust-transform into reckless behaviour. Crimes involving alcohol show a careless disregard for space, time, and circumstances.
- Religion
Another aspect that contributes to the cause of crimes against women is a person's lack of religion and the replacement of spirituality and religious beliefs with "enlightened rationalism.". When man has forgotten his inner self, when he has lost faith in the Supreme Being, when he only believes in the material world, when he is seduced by the desire for power and wealth at all costs.
There will inevitably be social maladjustment and disorganization, which will result in conflicts of interest and criminal activity. Although religion has been one of the main forces defending the patriarchal family, it has also given its adherents a moral code, a sense of social responsibility, and a sense of the fate of others. Behind this apparent contradiction, there is a call to remove the humanist components from all religions in order to create a society that is more just and humane.
- Lack of Proper Moral Education
A significant contributor to moral decay is a lack of proper education. The development of sound character and good habits is possible through the molding of propensities and potentialities. The child should be prepared to be a responsible citizen by both the home and the school. A properly trained mind in the right moral principles can thwart the situational urge that so frequently leads to heinous crimes like rape and outraging the modesty of women.
- Marital Maladjustment
Many crimes against women, both inside and outside of matrimonial homes, are the result of marital maladjustment. This maladjustment may develop due to the personality traits of the wife and husband as well as the environment in which the marriage operates. It is very difficult for the daughter-in-law to adjust, especially the working and educated one. The independence of their daughter-in-law irritates in-laws' mothers who are non-working and completely under the control of their husbands. Indian husbands place more value on their mothers' briefing than on their wives' objections. The husband and wife are largely maladjusted due to temperamental issues and incompatibility in their respective ways of thinking, working, dressing up, and acting. The husband retaliates by ignoring, abandoning, or turning to prostitutes in order to "satisfy his desires.
- Demands and Expectations
When a wife refused to comply with the unreasonable demands of the boss or act as a call girl in order to get what she wanted, the husband has in some cases resorted to physically abusing her. Those issues affected the family's psychological well-being. There are instances where brides have resisted being raped by their perverse in-laws, uncles, or brothers. in4aw. were assaulted and later abandoned on another location.
Because it is unresponsive to her plight, the legal system is a reflection of how society views women. - The laws passed to protect women have a number of flaws. In applying these laws, the courts have a conservative, rigid, and traditional attitude. Because of how poorly these laws are enforced, offenders appear to have lost all respect for the law. Because they are not apprehended, they become more brazen and believe that they can commit crimes without being found out.
There is no shortage of crimes, even very brutal ones against women that made the front pages of the newspapers and stirred. the public outcry that followed did not assist the long arm of the law in delivering justice to the victims, despite the fact that it served as the nation's conscience. It is abundantly clear from the People's Union for Democratic Rights' study of 14 cases of custodial rapes that occurred in Delhi between 1988 and 1990 that the offenders almost always escape punishment.
Inefficiency of the Legal Machinery
The police are the initial administrative body for the criminal justice system and are regarded as the first line of defense against crimes. They serve as both the entry point for new offenders and the point of re-entry for those who have been unsuccessful in other subsystems. In terms of social defense, they occupy a key position, probably second only to the family and other important social groups. No society can exist or function without an organized police force, but in every region of the world, the police have fallen short.
Sexual Offences under the IPC-Section 375-377
Throughout history, nearly all cultures and religions have regarded sexual offenses as crimes. It is a serious violation of the person's human rights. The victim's physical and mental health suffers severe, irreparable harm as a result of sexual violence, which is how sexual offenses are effectively committed. The human race may have made progress in terms of material and professional development, but it is happening at the expense of a person's integrity and temperament.
This write up will cover the extent of the provisions correlated to sexual offences under the Indian Penal Code, 1860[1]. The main goal of this article is to understand the phenomenon of sexual offenses in terms of the forces at play during their commission, their magnitude, prevalence, and potential elimination.
Analysis of sexual offences under Indian Penal Code
Chapter XVI section 375 to 377 of the Indian Penal Code,1860 deals with sex related offences.[2]
- Rape
Of all the crimes, rape is the most obnoxious one which violates bodily integrity and honor of a woman. The word Rape has its origin from a Latin term rapio which means to seize. Precisely it means forceful seizure. Section 375[3] deals with the provisions related to rape.
According to Section 375 of the Indian Penal Code, a man is considered to have committed rape if he inserts his penis through any extent into a woman's vagina, mouth, urethra, or anus, or inserts any object, to any extent, or any part of a body other than the penis into the same areas, or places an object in his mouth into the same areas, or forces her to do so with him or any other person, under the circumstances falling under:
- Opposed to her will.
- In the absence of her consent.
- With consent when it has been acquired by putting her or any other person related to her under the fright of death or hurt.
- With consent obtained under the misconception of fact that the man was the person she was lawfully married to.
- When the consent is given by reason of unsoundness of mind or intoxication of any stupefying or unwholesome substance.
- When the girl is minor, no matter the consent is given or not.
- When she is not able to provide her consent.
- Marital Rape
It has been acknowledged as an exception to rape in the definition of rape, which states that:
Rape does not occur when a man engages in sexual activity with his own wife who is over the age of fifteen.
After beginning marital relations, a wife is deemed to have given unwavering consent to engage in sexual activity with her husband. In a recent landmark decision, the Supreme Court criminalized non-consensual sexual contact with a spouse between the ages of fifteen and eighteen. At the same time, the Supreme Court and various High Courts of India are currently inundated with writ petitions contesting the constitutionality of this anomaly. Marital rape is an immoral act that violates articles 14 and 21 of the Constitution and needs to be outlawed.
Punishment for Rape
Section 376 outlines the punishment for the offense. Violent incarceration of either kind for a term that must not be less than ten years, but which may extend to life in prison, as well as payment of a fine, must be the punishment for rape.
Particularly, public employees, police officers, members of the armed forces, staff members of jails and hospitals, as well as relatives and guardians, are all subject to strict imprisonment for not less than ten years that may be extended to life in prison and will be subject to fines under Section 376.
Serious rape cases are those where the victim dies or goes into a permanent vegetative state. The offender will then be sentenced to a minimum of twenty years in solitary confinement and a maximum of life in prison as a form of punishment.[8] Anyone who engages in sexual activity with their spouse while they are living apart without consent will be punished with either two to seven years in prison or a fine in addition to their sentence.[9]
The law has separate provisions for sexual activity involving a person in authority. This includes situations where a man and woman are in a fiduciary relationship and one is in a position to dominate the other, such as a doctor and a patient, or when a man is the manager of a jail or custody facility. A man who commits this crime faces a harsh sentence of at least 5 years in prison and up to 10 years in prison. the IPC's Section 376C, and is incorporated therein. Repeat offenders face either a life sentence in prison or the death penalty.
- Gang Rape
When a woman is raped by one or more individuals acting as a group or in furtherance of a common intention, each of those individuals is subject to a sentence of at least twenty years in prison.[10]which can be extended to imprisonment for life and they would also be liable for fine and the fine will be reasonable to the medical expenses of the victim and the rehabilitation of the victim.
Sexual Offence Against Children
Minors Rape: A Trend in MakingRape against minors, or more specifically, against children under the age of 10, is quickly spreading throughout the Capital. These incidents show the complete degeneration of values brought about by the criminals' political patronage. Such cases have been dragged out in court for far too long due to careless prosecution. There are reasons to believe that at least three sexual offenses go unreported for every one that is reported, supporting the idea that the problem is much more widespread.
People claim that the fact that rape victims are approaching the police may be seen as a positive development, but the growing number of cases paints a disturbing social development.
Approximately 70% of all rape victims are minors, a percentage that has eerily remained fairly constant since 1991 despite an overall rise in the number of rape cases since then.
The statistics of each passing year are shocking in how frequently rapes of minors occur. Incredibly, 235 minors were raped in 1993 as opposed to just 167 in 1991. Although many cases go unreported, 158 cases involving minors had already been reported from the city as of August 1994. The victim is either too traumatized by the event or the parents choose to cover up the incident out of concern for the child's future.
It's a never-ending cycle. The rapist is aware that there is a good chance his crime against a minor won't be discovered. This is a key motivator because few people approach the police for fear of unfavorable publicity and unnecessary harrassment.
- Children sexual offence
In Japan's Yokohama in December 2001, the Second World Congress Against Commercial Exploitation of Children was held. The Congress expressed concern over the significant rise in child pornography availability brought on by the development of the internet.
Since the abuser is someone close to the victim, the problem of child abuse is complicated in terms of conceptualization and reporting.
To paraphrase the 1992 Penal Code (Amendment) Bill:
When we learn that a girl (child) has been sexually abused by a close relative of her own, our heads should hang in shame. She suffers as a result of her own reliance on the relative (Savior).[11]
Black's Law Dictionary's definition of "abuse" is: "Everything which is contrary to a good order established by usage, departure from reasonable use, improper use, physical or mental treatment, deception.". As a result, a very broad range of behaviors and mistreatment of kids are covered by the term "child abuse.". There hasn't been agreement on a definition of child abuse.
Child sexual abuse, according to P.D. Mathews is:[12]
Child Sexual Abuse includes implying, using, inducing or coercing, any child to engage in illicit sexual conduct, it also includes the use of children in assisting with other persons to engage in explicit sex.
"Child abuse" includes physical and emotional abuse of children as well as harsh punishment, forced labor, incest, exploitation, and hip abandonment.
The reporting of child sexual abuse cases, issues with the trial and the evidence, and the suitability and credibility of a child witness are the inherent difficulties in bringing child abusers to justice.
In SudeshJakhu v. K.C.J.[13], Jaspal Singh J laid down certain guiding principles and norms for conducting trial and taking evidence in child sexual abuse cases:
The trial judge should make every effort to lessen the victim's ordeal while [he or she] is testifying by keeping a check on the prosecutor, who might underestimate the child's feelings, and handle the proceedings with the utmost sensitivity. The magistrate should record the victim's statement in the same language as [he or she] speaks.
- Laws Relating to Protection of Children
The hearing should be held in private, and it is possible to take short breaks during questioning. However, if the prosecution can convince the court that using a screen is necessary to get a full and honest account from the child witness, the court might be inclined to grant that request.[14]
Joint involvement is required, as the Cleveland Report suggests, to investigate the issue.
The growth of interagency collaboration recognizes that no one agency-health, social services, the police, or a nonprofit-has the primary responsibility for assessing child abuse in general and child sexual abuse in particular. Each agency is primarily responsible for a specific aspect of the issue.
The most priceless time in a person's life is their childhood. As a result, both the government and the guardians of the children must uphold their constitutional duty to guarantee their right to life. Under the directive principles of state policy, Goa has taken the lead in granting children access to a number of rights. There are legitimate expectations for every human being, but especially for children, to have the right to education, health, nutrition, and life. However, the majority of state governments have had trouble living up to these demands.
The Goa Children's Act of 2003 was recently passed in Goa, making it illegal to engage in child labor, to abuse children in any way, to prevent them from receiving an education, and to deny them food and nutrition.[15] The Act calls for the establishment of "children's courts" to hear cases involving the abuse and deprivation of children. Massive authority has been given to various agencies to bring criminals to justice who are found to be playing with the lives of the most defenseless members of society.
Ruma Pal, a Supreme Court judge, stated that it is the duty of every citizen, institution, and arm of the government to ensure that children receive justice while speaking to a group of lawyers, jurists, and judges. In a survey report she cited, she described the plight of Indian children, where 87 million of them were employed in a variety of risky industries, including the glass and cracker industries.
It is well known that the government has no concern for children; otherwise, at least 50,000 children in the glass industry and 217 000 children in the carpet industry would have been free from servitude. She pointed out that the Supreme Court's 13-year-old order to establish a fund for children working in dangerous conditions has not yet been carried out.[16]
Waking up from its long slumber the Centre has now decided to set up a National Commission for Children to give protection to children and act as an independent "ombudsman" for them.
Research Methodology
The present research work is limited to doctrinal/non-empirical research as this research will be qualitative and comprise of data collected from various sources such as relevant Law, Law Reports, and Books, Journal, Articles, Newspapers and Statistics. Internet data will also be referred to for its value of being up to date with happenings around the world.
Objectives Of The Study
The present research is an effort to make in depth study of various facets of the problem of sexual abuse and exploitation of children in India and at International level. Analytical study of Constitutional provisions, statutory provisions, recommendations of Law Commission and observations and directions of Supreme Court have also been undertaken with the object to suggest suitable amendments to the existing legal provisions and to enact new laws relating to the protection of children from sexual offences in India. The broad objectives of the present research study are:
- What are Sexual offences and how prevalent are they in India?
- What are the causes of sexual offences in India?
- What is the impact of court procedures on access to justice by victims of sexual offences?
- Are the judicial remedies effective in combating sexual offences?
- To study various factors responsible for the commission of sexual offences against the children in Indian society such as social, economic, political, etc.
- To measure the ill-treatment and sexual abuse against children such as prostitution, child marriage, child trafficking, child rape, child sex tourism, pornography, etc.
- To assess the physical, mental, and social effects of such offences on the personality of the children.
Hypothesis
The hypothesis of the research is that women are the weaker section of the society, due to illiteracy, financial dependence, social taboos, etc., consequently easily suppressed and exploited. The concept of �women as property� is prevalent in patriarchal society, thereby dictating its utility, as it pleases to theirconscience. Sexual offence is considered to be the way to flaunt dominance over women by men.
The legal regime prevalent, are inadequate in shielding the women against the sexual offences and the accused are easilylet-off.
Majority of children are becoming the victim of the sexual offences due to various reasons e.g. social, economic, personal etc. But these offences are not reported due to family pressure and social stigma. Other cases fail owing to lack of evidence or witnesses turning hostile. There are number of legislations in India dealing with provisions to control the sexual offences.
Another specific law entitled the Protection of Children from Sexual Offences Act, 2012 has been passed by Indian legislature. This law is completely meant for the protection of children and it explains various types/categories of sexual offences against children and provides stringent punishment, but still sexual offences against children are on the rise in our country due to non-enforcement of the existing law, delay in investigation etc.
Literature Review
Books
Author, Mahendra K. Sharma, in his book, �Minimum Sentencing for Offences in India - Law and Policy�, Published in 1996 by Deep and Deep Publications, New Delhi, in his book the author has intended to assess the impact of the minimum punishment law on the incidence of socio-economic offences he made critical analysis of both statutory and case laws on the subject.
Author, Terry Thomas, in his book, �Policing Sexual Offences and Sex Offenders�, Published in 2016 by Macmillan Publishers Ltd., London, and the book of the author is about the work of the police with people who are suspected of committing or have committed sexual offence. In his work he mentioned that the police have been criticized as being a largely male dominated organization lacking the required sensitivity needed to listen to people, who were often women and children.
Dalbir Bharti in her book �Women and the Law�, Published in 2008 by S.B. Nangia, APH Publishing Corporation, New Delhi, in her book she wrote that on the one side our people give the best education to their sons and daughters and send them out to work in developed countries, but on the other side a large number of people, in blatant violation of the law, marry of their sons and daughters during their childhood and block their future. When we argue about our country's numerous merits and virtues, the examples of child marriages, dowry deaths, discrimination against women and their sexual harassment neutralize our claims.
Dr. VidyadeviPatil in her book, �Social Problems in India� Published by Laxmi Book Publication, Sholapur, Maharashtra in 2015, quoting official data he pointed out that Official sources show that rape cases in India has doubled between 1990 and 2008.
In most of the rape cases, the culprit is known to the victim. According to her Criminal activity is strongly associated with a victim's behavior. A victim's reaction can sometimes provoke an offender: however, appropriate� behavior may prevent a criminal act or at least minimize its impact.
According to scientific literature, the likelihood of becoming a victim is related to the characteristics or qualities of a person, a social role or a social situation that provoke or facilitate criminal behavior: personal characteristics such as individual or family status, financial prosperity, and safety, as well as logistical characteristics such as the time and place in which a confrontation occurs, can also determine the extent of victimization. He is of the view that People may become accidental victims, as assault is often preceded by heated discussion.
Articles:
David K. Carson, Jennifer M. Foster and Aparajita Chowdhury, in their Article titled as �Sexual Abuse of Children and youth in India: A Anthropological Perspective�, 2016 wrote that there are numerous, large-scale obstacles to addressing child abuse and neglect in India. Poverty is a major factor which impedes families'ability to provide adequate Shelter, medical care, and nutrition for their children, which at times results in child Abandonment.
Rustum Singh Thakur in his article titled as �An Eye for an eye will turn the whole world blind - in Special Context to reformative theory of punishment� dated 25 Jan., 2010, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1955438, wrote that an eye for an eye will make the whole world blind� he pointed out that reform in the deterrent sense implied that through being punished the offender recognized his guilt and wished to change.
The reformative theory aims at rehabilitating the offender to the norms of the society i.e. into law- abiding member. It condemns all kinds of corporal punishments. Theory works stupendously for the correction of juveniles and first time criminals, but in case of hardened criminals it is of nouse.
Sexual assault prevention and awareness center, University of Miching, published an Article on its website https://sapac.umich.edu/article/196 title as �Understanding the perpetrator� in Jan. 2018, According to their study there is no �typical profile� of a rapist, but they share some common characteristics.
Sex offenders are experts in rationalizing their behavior. It pointed out that Pornography consumption was common among the men in the sample and may further add to the risk of sexual aggression. Specific violent or rape-theme content of the pornography has been associated with propensity to rape and pro - rape attitudes in laboratory analogues, as well as from self-reports of men who have admitted raping.
It further states that although the associations between rape and pornography remains controversial, a number of studies have linked violent pornography and sexual arousal to rape depictions, violent sexual fantasies, rape callousness, and woman abuse.
Shallu B.A. (2010) in her article has written that delay in disposal of mercy petition is one of the points to be considered for delays in execution of death sentence. She pointed that the Rajiv Gandhi assignation case was one of its kind where the convicts are still alive as the president has not taken any decision on mercy petition quoting the Constitution of India she states that no one shall deprived of his life except to procedure established by law under Article 21. According to her, delay in the mercy petition disposal against the principle of rule of law.
Constitutional And Other Legal Provisions Relating To The Protection Of Women From Sexual Offences
Legal Aspects under the Constitution of IndiaThe Preamble to the Indian Constitution guarantees social, economic and political justice which too include gender justice, liberty of thought, expression, belief, faith and worship; equality of status and opportunity that would again reinforce the theory of equality; while fraternity enjoins citizens to treat each other with respect and dignity, regardless of gender.[17] The fundamental rights to life with human dignity[18], to equality[19], and to work in ones chosen profession or trade[20] inherently include protection from sexual harassmentThe Constitution unquestionably protects women's fundamental rights, according to this position.
The equality of women and children is firmly established in Article 14 as well as Article 15(1) of the Constitution, which gives the State the ability to make special provisions for them. Note that women are treated equally under Article 21. The right to education is guaranteed by Article 21A and is applicable to "all children," regardless of gender. Forced labor and human trafficking are both prohibited by Article 23. A child under the age of 14 may not be employed in a factory, mine, or other hazardous occupation, according to Article 24 of the Constitution. Additionally, Article 51A (e) states that every Indian citizen has a responsibility to renounce behaviors that are disrespectful of women's dignity. The Indian Supreme Court acknowledged it.
The Code of Criminal Procedure, 1973 Section 54A
Identification of Person Arrested
When a person is detained after being charged with a crime and his or her identification by another person or persons is deemed necessary for the investigation of that crime, the court with jurisdiction may, at the request of the officer in charge of the local police station, order that the person detained submit to identification by any person or persons in the manner the court may deem appropriate.[21]
-However, if the person identifying the person arrested has a mental or physical disability, the identification process must be overseen by a judicial magistrate who will take the necessary precautions to ensure that the person identifying the person arrested uses techniques that the person is comfortable with. Furthermore, the identification process must be video graphed if the person identifying the arrested person has a physical or mental disability.[22]
Section 154(1)
Information in Cognizable Cases
When given orally to a police officer in charge, every piece of information pertaining to the commission of a crime must be reduced to writing by him or under his supervision and read to the informant. Every such piece of information, whether given in writing or reduced to writing as aforesaid, must also be signed by the person giving it, and the substance of it must be recorded in a book to be kept by such officer in whatever format the State Government may specify.[23]
-Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 3548, Section 354C, Section 3540, Section 376, Section 376A, Section 3768, Section 376C, Section 45 of 1860. 3760, Section 376E or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer.
Provided further that:
- in the event that the person against whom an offence under Section 354, Section 354A, Section 3548, Section 354C, Section 3540, Section 376, Section 376A, Section 3768, Section 376C, Section 3760, Section 376E or Section 509 of the Indian 45 of 1860. Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
- the recording of such information shall be video graphed;
- the police officer shall get the statement of the person recorded by a
Judicial Magistrate under clause (a) of Sub-section (5A) of Section 164 as
soon as possible‖.
Section 160 (1)
Any police officer conducting an investigation pursuant to this Chapter may, by order in writing, require the presence before him of any person within the jurisdiction of his own or any adjacent station who, based on the information provided or otherwise, appears to be familiar with the facts and circumstances of the case; and such person shall appear as required.
With the caveat that neither a woman nor a male under the age of fifteen years old may be required to attend any location other than where they currently reside.[24]
In Section 160 of the Code of Criminal Procedure, in Sub-section (1), in the proviso, for the words -under the age of fifteen years or woman‖, the words -under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person‖ is substituted.
Section 161 (3)
Examination of witnesses by police
The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.[25]
-Provided further that the statement of a woman against whom an offence under Section 354, Section 354A, Section 3548, Section 354C, Section 3540, Section 376, Section 376A, Section 3768, Section 376C, Section 3760, Section 376E or Section 509 of 45 of 1860. The Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer‖.
Section 164 (5)
Recording of confessions and statements
Any statement (other than a confession) made under Sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.[26] -(5A) (a)
In cases punishable under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Sub-section (1) or Sub-section (2) of SECTION 376, Section 376 A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the 45 of 1860. Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been Committed in the manner prescribed in Sub-section (5), as soon as the commission of the offence is brought to the notice of the police.
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.
(B) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in Section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.
Constitutional And Other Legal Provisions Relating To The Protection Of Children From Sexual Offences
Children are the dawn of humanity. They are buds to bloom into flowers of humanity for a nation.[27] A child of today is a responsible subject of a nation tomorrow. The nation of today is not judged by the capital resources which they possess rather these are assessed in term of developments proficient and expert human resources finds its sources in children. The children are the future hope of every nation.[28] They are most vulnerable group in any society.The injustices may many children suffer are unspeakable and occurs in all corners of the globe in all walks of life. In a civilised society, the importance of child welfare cannot be under estimated because the welfare of the entire community, its growth and development depends on the health and well being of its children. Children are a supremely important national asset and well being of the nation depends on how its children grow and develop. A child is not expected to achieve a full physical and mental growth unless a proper environment, adequate opportunities and sufficient facilities are provided.
Neglecting the children means loss to the society as a whole. If children are deprived of their childhood socially, economically, physically and mentally, the nations get deprived of their potential human resources for social progress, economic empowerment, peace and order, the social stability and good citizens. Therefore, children require special care and protection because of their tender age, physical and mental faculties. It is the duty on the part of each member of the society to protect the children from every kind of damaging effect. It is the birth right of every child, who cries for justice from every nook and corner of the globe.
It is the primary function of the State to protect person and property and to promote the welfare of the people in the country. Moreover, it is the responsibility of the state to protect children from social injustice and forms of exploitation under the Directive Principles of the State Policy of the Indian Constitution.[29] The Fundamental Rights must not be ignored by the State on a specious argument of paucity of resources, when the rich continue to thrive and wasteful expenditure of public monies is more than evident. In fact, the provision of Article 15(3) of the Constitution, being an enabling provision, is a clear indication of the obligation of the State to adopt and strictly enforce preferential measures in relation to matters affecting women andchildren.10
Administration of justice is the prime responsibility of the State which is maintained within the State by the agency of law. It means justice according to the law. There are two main highest organs of the judiciary in the Indian Legal System. Supreme Court is the Apex Court of the Country and all the decisions of it are binding upon the all lower courts of the nation, whereas within the States, High Court is the highest Court and all the lower Courts within the state are bound by the decision of it.
In Indian scenario the children require proper care, love, affection and nourishment, but on account of their vulnerability and dependence, they are physically, mentally and sexually abused and ill-treated. Sexual abuse of children is the worst kind of crime. There are many constitutional and other legal provisions which protect the rights of the children and prohibit sexual abuse against them in India.
Constitution Of India
The Constitution of India is the law of the land. As the Constitution is the supreme law of the Land, all other laws have to be enacted within the parameters laid down by it. Our Constitution makers, sane and sagacious as they were, had known that the India of their vision would not be a reality unless the children of the country are nurtured and educated. For this, their exploitation by different profit makers for their personal gain had to be first made punishable.Undoubtedly, children are future of the country and need special protection because of physical and mental faculties they possess. There are many constitutional provisions relating to the welfare of children.
There are many provisions mentioned under Fundamental Rights and Directive Principles of the State Policy for the protection of the rights of children which are as following:
Right to Equality (Article 14):
It provides, �The State shall not deny to any person equality before the law or equal protection of laws within the territory of India.� The obligation imposed on the State by this Article is for the benefit of all people, within the territory of India. This Article provides two fold equality to every citizen of the country.
- Equality before law.
- Equal Protection of law.
Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. It means absence of any special privileges for any particular person. It also strikes at arbitrary power on the part of the Government.
Equal Protection of Laws is positive in operation ensuring equality of treatment to all in equal circumstances. Equality secured by Article 14 does not mean absolute equality, which is a human impossibility. It does not mean that the same laws should apply to all persons. All persons are not equal by their nature, attainment or circumstances.
The varying needs of different classes of persons often require separate treatment.[30] From the very nature of the society, there should be different laws, applying differently in different places. Application of the same laws uniformly to all, under different circumstances, may result in violation of the principle of equality.[31] The classification permitted by this article rests upon reasonable grounds of distinction. It must not be �arbitrary, artificial or evasive.� It must be reasonable classification.
Prohibition of Discrimination against Citizens (Article 15):
This Article contains provisions for a particular application of the general principle of �equality of treatment' embodied in Article 14. It prohibits discrimination on the ground only of religion, race, caste, sex, and place of birth or any of them.
This Article also provides that:
�Nothing in this Article shall prevent the State from making any special provision for women and children.�[32] This Article casts a duty on the State to make special provisions for the welfare and uplftment of the women and children. This clause (3) of Article 15 is an exception to the rule against discrimination embodied in Article 15.
While, article 15(1) and 15(2) prohibit discrimination on the ground of sex, clause (3) enables the State to confer special rights upon women and children.
Right to Education (Article 21-A):
It provides that, �The State shall provide free and compulsory education to all the children of the age of 6 to 14 years in such manner as the State may, by law, determine.�
Even before the insertion of Article 21-A, new dimension were given to the fundamental right to life and personal liberty and child's right to education was one of the expanded meanings given by the courts to enable the citizen to enforce this right as a fundamental right. Under Article 41 and 45 the State is empowered to make effective provisions for right to education within the time limit of 10 years from the date of the commencement of the Constitution of India. Article 46 mandates the State to promote with special care the education interest of the weaker section of the society.
Certain Principles of Policy to be followed by the State (Article 39):
Article 39 (f) makes obligatory for the State to direct its policy towards security that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 39 of the Constitution specifically requires the State to ensure for protection of children and child care. Right to live with human dignity free from exploitation enshrined in Article 21 derives its life breath from the Directive Principles of the State Policy and particularly clause (e)[33] and the Article 39.
These Articles prohibit all kinds of exploitation against the children. Article 37 casts a duty on the State to raise the level of nutrition and the standard of living and to improve public health. The objectives reflect the great anxiety of the Constitution makers to protect She safeguard the interest, welfare of ourcountry.
The Protection of Children from Sexual Offences Act, 2012:
The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provision for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.
It is, in itself a remarkable positive step in recognizing not only the issues with regard to child sexual abuse but also takes intricate step to tackle this enraging social issue. This Act contains nine chapters and forty six sections and is expected that it will do the needful. The Act provides for protection to all children under the age of eighteen years.
The offences of sexual assault, sexual harassment and pornography have been clearly explained. The Act also provides for stringent punishments for such offences which have been graded as per the gravity of the offence. The Punishments range from simple to rigorous imprisonment of varying periods. There is also provision for time, which is to be decided by the Court.
The Act further provides for the establishment of special courts for trial of offences as per the provisions, keeping the best interest of the child as of paramount importance at every stage of the judicial process. This Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences.
It is also recognized that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalised. Thus an attempt to commit an offence as prescribed under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offences. Punishment for abetment of the offence is also the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
For the offence of penetrative sexual assault, aggravated penetrative sexual assault, simple sexual assault and aggravated sexual assault, the burden of proof is shifted on the accused. The provision has been made keeping in view the greater vulnerability and innocence of children and to prevent misuse of the law, punishment has been provided for making false complaint or providing false information with malicious intent.
Further, the media has been barred from disclosing the identity of the child without the permission of the Special Court. For the breach of this provision, punishment is also prescribed.
This Act casts a duty on the Central and State Government to spread awareness through media including television, radio, and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
The National Commission for the Protection of Child Rights (NCPCR) and the StateCommission for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.This Act contains nine chapter and forty six sections. It is hoped that this Act will cater the need to protect the helpless children against the sexual abuse.
Judicial Pronouncements
- In the case of Surinder Singh @ Shinda v. Union Territory, Chandigarh
(P&H)[34], the Punjab and Haryana High Court held that Offences punishable both
under certain provisions of the IPC as well as POCSO Act - Accused liable to be
punished under POCSO Act as well as IPC - Court shall award punishment which is
greater in degree - Sentence cannot be awarded both under POCSO Act and IPC
simultaneously.
- In the case of Dinesh Sharma v. State, (Delhi)[35], the Delhi High Court
held that Criminal Procedure Code, 1973 Section 482 India n Pena l Code, 1860
Sections 354, 354D, 506, 509 r/w Section 34 Protection of Children from Sexual
Offences Act, 2012 Section 10 Compromise - Quashing of FIR - High Court h a s
power to quash even in those offences which are not compoundable, where parties
have settled matter between themselves - However, heinous offences like rape
cannot be quashed - Petitioner accused of offence under POCSO Act - Exercising
jurisdiction under Section 482 CrP.C , 1973 to quash offence under POCSO Act
would go against intention of legislature which has brought out special
enactment to protect interests of children - FIR cannot be quashed on ground
that victim after attaining majority has decided to compromise matter with
accused.
- In the case of PurnaNaharDeka v. State of Assam, (Gauhati)(DB)[36], the
Gauhati High Court held that Protection of Children from Sexual Offences Act,
2012 Sections 6, 29 and 30 Criminal Procedure Code, 1973 Section 164 Sexual
assault with minor daughter - Section 29 and 30 of POCSO Act does not actually
relief prosecution of its burden to prove case - These provisions of law,
however, lesson burden of prosecution by shifting onus of proof to accused -
Once foundation for holding presumption is established, after that duty is cast
upon accused to prove h is innocence - Accused did not prove his innocence by
adducing evidence and failed to discharge his statutory burden - Thus, trial
court rightly held that charge brought against accused proved beyond all
reasonable doubt - Conviction and sentence upheld.
- In the case of PrabirBhuian Alias PrabirBhuinyan v. State of West
Bengal, (Calcutta)[37], the Calcutta High Court held that:
- Protection of Children from Sexual Offences Act, 2012 Section 8 Indian
Penal Code, 1860 Sections 354 and 325 Sexual assault on step-daughter -
Conviction and sentence - Statement of victim girl that her stepfather used
to touch her different parts of body inappropriately - No reason to
disbelieve the evidence of the victim and her mother - If she states that
she was subjected to inappropriate touch by her stepfather, Court shall have
to accept her feeling - In order to apprise case under POCSO Act robustness of masculine judicial system
must give way to feminine feeling of embodiment of lady Justice - When
foundational fact in an offence under POCSO Act is proved, burden of proving
contrary shifts upon accused which he failed to discharge under Section 29 of
Protection of Children from Sexual Offences Act - At the same time it is open
for Court to raise presumption of culpable mental state of appellant while
committing such offence - Conviction and sentence confirmed.
- Protection of Children from Sexual Offences Act, 2012 Section 33(7)
Nondisclosure of identity of child victim of sexual assault during the
course of investigation or trial - Mandate - Whether specific act amounts to
an offence of sexual assault or not, is a question of fact to be determined
from victim's point of view - A girl attaining the age of 15-16 years only
understands whether any touch on her body is appropriate or inappropriate
act - She can only understand whether a person touches her with sexual
intent or not - Victim girl more than once stated that her stepfather
touched different.
- Parts of her body inappropriately - On one occasion, during her sleep
she woke up and found that her stepfather was trying to touch her breast and
she removed the hand of the appellant - Victim is best judge of incident -
Guidelines of Supreme Court - Officer-in- Charge of every police station
shall ensure that in written complaint name victim girl shall not be stated
- Victim girl shall be identified by her age, her father's name and other
particulars sufficient to identify the victim during investigation without
disclosing her name - No person can print or publish the name of victim or
disclose any facts which can lead to the victim being identified and which
should make her identity known to the public at large.
- Criminal Procedure Code, 1973 Section 162 Indian Evidence Act, 1872
Section 145 Previous statement - In criminal trial, the previous statement
of a witness can be used by accused for limited purpose - A former
statement, though seemingly inconsistent with evidence need not necessarily
be sufficient to amount to contradiction - Only such of the inconsistent
statement which is liable to be contradicted would affect the credit of the
witness - Whether discrepancy pointed out was minor or not or same amounted
to contradiction, regard is required to be had to the circumstances of the
case by keeping in view the social status of the witnesses and the
environment in which such witness was making the statement.
- Protection of Children from Sexual Offences Act, 2012 Section 8 Indian
Penal Code, 1860 Sections 354 and 325 Sexual assault on step-daughter -
Conviction and sentence - Statement of victim girl that her stepfather used
to touch her different parts of body inappropriately - No reason to
disbelieve the evidence of the victim and her mother - If she states that
she was subjected to inappropriate touch by her stepfather, Court shall have
to accept her feeling - In order to apprise case under POCSO Act robustness of masculine judicial system
must give way to feminine feeling of embodiment of lady Justice - When
foundational fact in an offence under POCSO Act is proved, burden of proving
contrary shifts upon accused which he failed to discharge under Section 29 of
Protection of Children from Sexual Offences Act - At the same time it is open
for Court to raise presumption of culpable mental state of appellant while
committing such offence - Conviction and sentence confirmed.
- he Supreme Court in the case of Sucheta Sirvastav v. Chandigarh
Administration[38]highlight the importance of the doctrine of 'ParensPatrie' and
make aware to the State of its duty to take care of the destitute and orphan
children. The doctrine of ParensPatrie has been evolved in the Common Law and is
applied in situation where the State must make decision in order to protect the
interest of those persons who are unable to take care of themselves.
Traditionally this doctrine has been applied in the case involving the rights of
minors.
India, being a Welfare State has also enacted several provisions in this regard so that its children could be brought up in such an atmosphere which is conducive to their physical, mental and moral development. In due course of time a number of legislative measures, plans and policies have been enacted and undertaken to uplift the status of children in India. In this regard Justice SubbaRao had rightly remarked, �social justice must being with children unless tender plant is properly tended and nourished it has little chance to growing into a strong and useful tree. So priority in the scale of social justice shall be given to the welfare of children''
- In the Case of Priya Patel v. State of M.P.[39]
Facts: The prosecutrix was returning home after her sports meet and the husband of the appellant met her at the railway station and told her that her father has sent him to pick her. He took her to his house and raped. During the commission of rape, appellant (the wife) entered the room and prosecutrix asked for the help but instead of savinf her, the appellant slapped her and closed tthe door and left the place of the incident. The accused husband was charged under Section 376, IPC whereas the appellant wife was charged for commission of offence punishable under Section 376(2)(g), IPC.
The appellant wife challenged the legality of the charge framed against her under Section 376(2)(g), IPC on the ground that since a woman cannot commit rape and so cannot be convicted for commission of 'gang rape'.
Judgment: The court held that a woman cannot said to have an intention to commit rape. Therefore, the appellant cannot be prosecuted for alleged commission of an offence punishable under Section 376(2)(g).
- In the Case of Tukaram v. State of Maharashtra[40]
Facts: Mathura, a Harijan girl developed intimacy with a boy, Ashoka. Her brother lodged a report in the Police Station that Mathura had been kidnapped by Ashok. After sometime, Mathura was brought to the Police Station and statement was recorded. Since, it was late at night, so there were two constables (appellants) present at the police station at the time. The appellants asked Mathura to stay at the police station and asked her companions to wait outside. One of the appellants took her into the washroom and light a torch focusing on her private parts and thereafter dragged her and raped in spite of her protests.
Then, the other appellant came and wanted to rape her but couldn't as he was highly toxicated. Since, all the lights of the police station was off and nothing was visible, the companions of Mathura called her name and shortly afterwards, Mathura emerged out of the police station and alleged that one of the constables had raped her. The crowd became aggressive and so, her FIR was lodged on behalf of her statement. Doctor's report stated that there was no injury on the body of Mathura. Her hymen revealed old ruptures. The appellants contended that since there was no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse, it can be inferred from the available circumstances that she did this with her passive submission.
Judgment: The court held that no marks of injury was found on the body of the girl after the incident and this indicates that the intecourse was a peaceful affair and the story made by the girl was fictitious. Therefore, no offence is brought against the appellants.
This case is popularly known as 'Mathura Rape Case'.
After this case, it was interpreted by the Apex Court in many cases that to constitute the offence of rape, it is not important that there must be some injury on the body of the victim.
- In the Case of RupanDeol Bajaj v. K.P.S. Gill[41]
Facts: The petitioner was an IAS Officer and accused was DGP, Punjab. The petitioner was invited to a party where the accused was also present. The accused asked the petitioner to come and sit next to him and when she went to sit, he pulled the chair closer to him and the petitioner was surprised by this act and she pulled her chair back to original place and again he pulled the chair closed to him. The petitioner asked him to leave but he again asked petitioner to accompany him in a commanding voice.
She got apprehended and frightened and immediately pulled her chair back and turned to get out. At this point, the accused slapped the butt of the petitioner in the presence of all the guests which was very embarrassing for her. She filed an FIR against him.
Judgment: The High Court quashed the FIR and held that the act was covered under Section 95, IPC.
The Supreme Court disagreed with the High Court and held that quashing FIR is illegal and Section 95, IPC is not at all applicable. The court further added that when an offence relates to the modesty of women, it could not be trivial under any circumstance. Therefore, the accused was held liable under Section 354, IPC.
- In the Case of Raju Pandurang Mahale v. State of Maharashtra[42]
Facts: The accused brought the victim to the house of co-accused on a false pretext. They confined her in the house and brought liquor which she was forced to drink. The victim was then disrobed and her nude photographs were taken.
Judgment: The Supreme Court held that the accused was guilty under Section 354, IPC as their acts were affront on the normal sense of femanine decency.
- In the Case of State of Punjab v. Major Singh[43]
Facts: In this case, the accused had caused injuries to the vagina of a seven and a half months old child by fingering.
Judgment: It was held that the accused was liable for outraging the modesty of the child under Section 354, IPC. The court further added that the essence of a woman's modesty is her sex. Young-old, intelligent or imbecile, awake or sleeping; women possesses a modesty capable of being outraged.
Conclusion
Every single individual grows up with innocence, being a human everyone is born equal but when it comes to the female sex then the sociological structure of the society views its differently not only in India but all over the world. Therefore under the social structure and norms every women that's grows up cherishing her dreams of life with physical purity or chastity and to have a happy and prosperous family life. And the same is not changed till today, though sexual ethics have changed in the society.
The evident of our being in this world, is result of the presence of women, as she is the only, who is blessed by the divine to give birth. Though, she requires the male partner in the process but even then she is the only one, which makes our presence successful. That's why she is called the mother� of mankind. Her value and dignity is preserved at the highest pedestal. Thus this world owes to the women.
When we talk about the human development the role and achievements of men are mostly on count whereas the role and achievements of women don't get enough importance. Since from the early times many fall victim to gender selective violence, as a result of which they do not receive the same amount of food and medical attention as their brothers, fathers and husbands.
Rather they have been abused mentally and sexually and are the victims of honour killings' and to acid attacks. An estimated 5,000 women are burnt every year for materialistic needs like dowry and a number of women are killed within their own walls through domestic violence. Millions are trafficked and sold like cattle rape and sexual exploitation are the other horrible physical and mental trauma to them.
The reason for such gross discrimination is embedded in the dichotomous patriarchal view of the society that the good woman is a women who lives under the protection of her male partner, ensconced in her home, and does not go out after dark or visit unsafe places; even streets and public parks and who deviates from this norm is bad and assumed to be sexually available because of being unprotected.
By this logic, the woman who gets sexually assaulted is automatically proven to be bad or immoral. And where a married woman gets raped or sexually assaulted it results in the breakup of home and the family as the raped wife is sure to be divorced by her husband. But the rapes within marriage are categorized differently because in such cases the position of women is that that she is her husband sexual property.
Practically all victims of sexual violence who after the assault saw law enforcement agencies as their protector or helping hand and with this belief whenever they lodge a complaint with them they meet with condemnatory attitude which is also shared by the judiciary, the police interrogation and court trial amount to a second and a �public rape� in an emotional sense, which traumatizes the victim all over again and serves as a strong deterrent for rape victims in their pursuit of justice. The strong male bias of the police and the judiciary makes it very difficult to prove that it is a case of rape.
Children are the actual assets and they are the future of a nation and also future of the world. If there is no proper growth of the child today the future of the country will be dark. It is the duty of every generation to bring up children in a better and protective way. Today's children are to maintain the honour and prestige of the nation. States will have to pay a special attention to the protection, care and development of the children.
Despite multiple Constitutional, Penal and Legislative Provisions sexual abuse of children is on the increase. There is no let up in the immoral acts against children. The situation is getting alarming day by day. Children do not feel safe both at home and outside. it is imperative on the part of the government and judicial agencies to frame more stringent laws so that the crimes against children may not only be curbed but almost abolished. It may be added here that only making of laws will not serve the purpose but their implementation both in letter and spirit is equally necessary.
he problem needs to be tackled at the societal level also. The people should be enlightened about the need of cultivation of sound moral values. Mass should be pressed to educate society about the care and concern of children for the health and happiness of society and humanity at large. Here are some suggestions which can definitely go a long way in removing legal gaps and undue harassment of the victims of sexual offences at different levels.
- Law relating to paedophiles is inadequate. The police is generally ineffective in registering the crime especially when the cases are against foreign tourists and international links are involved.
- The laws governing prostitution are against the prostitute under the Prevention of Immoral Trafficking Act, 1986. The customer is not considered an offender. Examination of the victims/ witnesses should be done in the presence of social workers/ women police/parents or other who has the trust of the children. The examination should be done in a familiar atmosphere and not in policestations.
- Questioning should be done mostly by women policeofficers.
- The mental health of the children should be kept in view. So much pressure should not put on them.
- Investigation should necessarily be conducted into all cases of missing persons, procuring minor girls, buying and selling, child marriages and cases of kidnapping andabduction.
- Special courts should handle all cases of sexual abuse of children within a specific timeframe.
- It is suggested that rather than having different laws for different situations, especially in case of laws for the protection of women and children from sexual violence, There should be a single complete Code "The Human Code" which covers all sorts of sexual offences and violence and prescribe such punishment that be inherently of the nature and acts as a major deterrent for commission of such crimes.
- In the modern era, controlling the predatory use of the Internet is difficult. Laws governing its use, where they exist, are often vague or difficult to enforce. Therefore, it is suggest that it is important to encourage people to report online incidents as well as it is also important to provide information and resources to help youth and adults protect themselves online.
- It is strongly recommended that the concept of minority and maturity of accused or the offender in case of rape and sexual assault is to be ignored. Because he who can commit such a crime like rape and sexually assault, can no longer be considered a minor neither nor he remains immature. In today's era, where things progress much faster than expected, where a child of about 3 or 4 years of age participate in reality shows and play with the electronic gadgets, determining his level of maturity on the basis of his age is not relevant. And thus the Juvenile Laws need to be scrutinized carefully.
- There must be effective enforcement of law regarding child marriages and there must be unanimity regarding the nature of child marriage under the different personal laws in India.
- Increase social awareness in parents of children through seminars or stage shows about the negative effects of child marriage.
- Legislation of prostitution is not the remedy for the problem. We must have to check out the persons involved in human trafficking. Government must have to prevent persons indulging in this profession.
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- Section 54 A, Code of Criminal Procedure, 1973.
- Section 154 (1), Code of Criminal Procedure, 1973.
- Section 160 (1), Code of Criminal Procedure, 1973.
- Section 161 (3), Code of Criminal Procedure, 1973.
- Section 164 (5), Code of Criminal Procedure, 1973.
- Naipal Singh, Child Labour and the Law, paper presented at International Conference hosted by the Indian Law Institute, 1994.
- MohivddinKhairoowapa and AbhayVikram Singh, �Issues and Challenges of Child Labour in Global Perspective; The Indian Journal of Political Science, Vol. LXXIV, No. 3, July-September, 501 (2013).
- Article 45 and 46 of the Constitution of India.
- ChiranjitLalChaudhary v. Union of India, AIR 1951 SC 41.
- Municipal Committee, Patiala v. Model Town Presidents Associations, AIR 2007 SC 2844.
- Article 15(3) of the Constitution Indian.
- Article 39(e) that the strength of workers, men and women and the children of tender age are not abused and that citizen are not forced by economic necessity to enter in avocation unsuited to their sot age or strength.
- 2020(3) R.C.R.(Criminal) 53 : 2020(3) Law Herald 1870 : 2020 ALL MR(Cri) 381
- 2021(2) Cri.CC 21 : 2021(222) AIC 453 : 2021(2) JCC 1444 : 2021(279) DLT 9
- 2021(227) AIC 665 : 2022(1) Gau LR 560 : 2022(1) Gau LT 766 : 2021(6) Gau LJ 137
- 2021(4) Crimes 425
- (2009) 9 SCCI.
- 2006(6) SCC 263
- AIR 1979 SC 185
- 2005(6) SCC 161
- 2004(2) SCR 287
- AIR 1967 SC 63
Award Winning Article Is Written By: Ms.Nivedita Narwal
Authentication No: JL319313198256-12-0723
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