Court Log: July – September 2017
Court Log is a quarterly chronological listing that tracks notable court cases and judgements pertaining to POCSO and other related laws addressing sexual assault and harassment.
Insulting Content Against SC/ST On Facebook Wall Can Be Punishable, Regardless Of Privacy Settings: Delhi HC
Date: 04 July, 2017
Based on a petition filed in the court regarding harassment and abusing caste on social networking sites/ Facebook.
The Delhi High Court ruled that insulting or intimidating content against a member of the Scheduled Castes or Scheduled Tribes on the Facebook wall can be punishable, regardless of the fact that the privacy settings were changed to ‘private’. The court quoted that “Pertinently, Section 3(1)(x) of the Act does not require that the intentional insult or intimidation with intention to humiliate a member of the Scheduled Caste or Scheduled Tribe should take place in the presence of the said member of the Scheduled or Scheduled Tribe. Even if the victim is not present, and behind his/ her back the offending insult or intimidation with intention to humiliate him/ her – who is a member of the Scheduled Caste or a Scheduled Tribe takes place, the same would be culpable if it takes place within public view.”
Rape Cases Of Mentally Challenged Victims Cannot Be Shifted To POCSO Courts: SC
Date: 21 July, 2017
The Petition, filed through Advocate Aishwarya Bhati, had contended that the definition of ‘child’ under Section 2(d) of the POCSO Act should include within its purview the mental age of a person as well so that a mentally challenged person could also seek protection under the Act. Currently, Section 2(d) defines a child to mean any person below the age of 18 years.
The Supreme Court has denied the petition stating the following two reasons:
The Parliament had not made such a distinction in the provisions, and hence, they should be given their literal meaning.
If the term ‘age’ was interpreted to include ‘mental age’, the consequence would be ambiguity, chaos and unwarranted delay.
CIC Asks NCW To Pay Token Compensation Of Rs. 50K To Ex-Employee Who Complained Of Sexual Harassment
Date: 28 July, 2017
CIC directed the National commission to women to pay compensation to a victim of harassment and also charged for denying information to her under the right to information act.
CIC suspects that the NCW was trying to shield their important officer by denying the information requested by the appellant. The CIC believes that the information might help the appellant to prove her allegations.
The CIC observed that National commission of women which was meant to safeguard rights of women by itself has violated the right to information of the appellant.
Cannot Quash Rape Charges Just Because The Accused Married The Complainant: Delhi HC
Date: 4 August, 2017
The Delhi High Court relied on the Supreme Court decision in the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303, and refused to quash rape charges against an accused who had gone on to marry the complainant.
When the court asked, “Whether the mere fact that the parties have allegedly got married should be a reason good enough to quash the FIR registered under Sections 376(2) (N)/323/506 IPC and consequential proceedings emanating therefrom”. Justice Rani dismissed the petition by answering in negative.
Bihar Rape Survivor’s Abortion Plea: SC Directs State To Pay 10 Lakh Compensation; Raps HC And Hospital For Delay
Date: 17 August, 2017
The Supreme Court directed the Bihar Government to pay Rs. 10 lakh as compensation to an HIV-infected rape survivor, and rapped Patna High Court and the Government hospital for having contributed to the delay in considering her plea for abortion.
The Supreme Court observed that negligence and carelessness of the hospital and high court caused delay which prevented the victim from going for abortion The delay in such a situation has the seed that can cause depression to a woman, who is already in despair.
Criminalizing Marital Rape May Destabilise Institution Of Marriage: Centre Tells Delhi HC
Date: 29 August, 2017
Multiple writ petitions have been filed in the courts challenging the constitutional validity of Exception 2 to Section 375 as well as Section 376B of the IPC on the ground that it excludes marital rape as a criminal offence. It is contended that this exception is unconstitutional and violates the right of married women under Articles 14, 15, 19 and 21 of the Constitution of India.
Citing that that there can be no lasting evidence in case of sexual acts between a man and his own wife, and Misuse of Section 498A of IPC, the Centre has submitted before the Delhi High Court that criminalizing marital rape, as sought by some petitioners, may destabilize the institution of marriage apart from being an easy tool for harassing the husbands.
Bombay HC Partly Allows Appeal Against Order Of Conviction That Sentenced Accused Separately Under POCSO Act, Sec 376
Date: 31 August, 2017
An appeal was filed against conviction of an accused under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act as well Section 376 of IPC (rape), in this case, the accused was given that trial court sentenced the accused to 10 years under the offence of rape (S.376) when he had already been sentenced to 10 years under S.4 of the POCSO Act.
The court accepted the appeal and stated that, “Under Section 42 of POCSO Act, in case of commission of a crime that constitutes an offence punishable under the said Act as well as an offence punishable under Section 376 of the IPC, then, notwithstanding anything contained in any law for the timebeing in force, the offender found guilty of such offence shall be liable to punishment under the POCSO Act or under the IPC, as provided for punishment which is greater in degree.”
SC Reviews Arrangements Made For Well-Being Of 10-Yr-Old Rape Survivor Who Delivered A Baby; Issues Further Directions
Date: 2 September, 2017
The Supreme Court reviewed the arrangements made for a 10 year old rape survivor who delivered a baby after a plea for abortion was turned down.
According to the court, the victim as well as the baby were being looked after by a support person, counselor and a liaison officer appointed by the CWC, the Supreme Court ordered Department of Women and Child Welfare and director of social welfare to attend to the needs of the child and be the nodal agency to avoid multiplicity of authorities. A compensation of 10 lakhs for was granted for the victim child.
SC Permits 13-Yr-Old Rape Victim To Abort 32-Week-Old Foetus, The Oldest So Far
Date: 6 September, 2017
The court permitted Medical termination of pregnancy for a 13 year old rape victim whose child fetus was 32 weeks old. This has been oldest fetus permitted to be terminated in the recent past .
Though, the law does not permit termination beyond 20 weeks. Quoting “how can such a small girl become a mother”, Chief Justice Deepak Mishra suggested that since the 13 year child was a victim of rape and she did not want to own the child. The bench permitted abortion considering the opinion of the doctors.
SC Reaffirms That Welfare Of Child Is Paramount Consideration For Custody Of Children
Date: 7 September, 2017
The Supreme Court raised the issue of custody and mentioned that the prime consideration should be the welfare of the children.
In a case where the High court gave the custody of the children to their father after mother violated the interim orders. When the case was upheld in Supreme Court it was observe that the children were kept in the hostel and the children were performing poorly in their academics. Therefore the Supreme Court suggested that the prime consideration in custody of children should always be their welfare and handed over them to the mother.
Two Women Lawyers Move SC Over Safety Of School Children
Date: 12 September, 2017
Two women lawyers filed a PIL in the Supreme Court requesting for framing of non- negotiable child safety conditions and implementation of existing guidelines to protect school-going children from offences like sexual abuse and murder across the country. The plea also suggests cancellation of licenses and forfeiture of state grants of erring schools will be heard by the court along with the petition filed yesterday by the father of seven.
Besides Union Human Resources Ministry, the plea has made all state governments and Union territories (UTs) as parties and has sought proper implementation of existing guidelines. The case is being heard by a bench Chief Justice Dipak Misra and Justices Amitava Roy and A M Khanwilkar .
On Plea By Minor Rape Victim’s Mother, SC Allows Medical Termination Of 24-Week Foetus
Date: 21 September, 2017
The Supreme Court allowed a writ petition, filed by the mother of a 13-year-old rape victim, seeking medical termination of the daughter’s 24-week-old fetus.
The court also specified that the medical board would consist of head of departments of obstetrics, gynecology, pediatrics, psychiatry, radiology and neurology from AIIMS and stated that the board must give its opinion relating to the termination of life of the fetus. Based on the opinion given by 11 doctors the court allowed for MTP and suggested that all the expenses should be borne by AIIMS.
Even A Woman Of Easy Virtue Has The Right To Say ‘No’: Bombay HC
Date: 26 September, 2017
Bombay High court rejected the bail plea in a case where the accused was convicted under Protection of Children from Sexual Offences act and sentenced him for 10 years.
Justice Badar stated that “A woman may be having easy virtue but that does not mean that all and sundry can take advantage of this fact. She has right to say no. Therefore, even if, it is assumed that the victim was having two boyfriends that does not empower the applicant to commit penetrative sexual assault on her. She had not attained consenting age. Unavailability of earning particularly in the family is not a relevant consideration for suspension of sentence.”
Make IPC Rape Provisions Gender-Neutral: Petition In Delhi HC, Notice Issued
Date: 28 September, 2017
Mr. Sanjeev Kumar filed a petition in The Delhi High Court, challenging the Constitutional validity of Sections 375 and 376 of the Indian Penal Code and demanding gender neutral rape provisions.
Mr. Kumar stated that Male rape is too prevalent and IPC 375 and 376 doesn’t pass this test with respect to Article 14 r/w Article 21 of Constitution of India after Right to Privacy ruling.”It then draws the Court’s attention to other such instances and emphasizes on the fact that rape laws in 63 countries are written in gender-neutral language. Mr. Kumar also blames patriarchy for the silence maintained around male rapes which considers him weak for being raped by a female.
