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On January 19 the Nagpur bench of the Bombay High Court reduced the sentence of a man who attacked a child.
“The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of ‘sexual assault’,” the court held.
The judgment was passed by Justice Pushpa Virendra Ganediwala who assumed office in 2019 after being nominated by former Chief Justice of India Ranjan Gogoi. She made the observation in connection with a case from 2016, where a 39 year old man, Satish, was accused of groping the breasts of a 12 year old girl while trying to undo her salwar.
According to the prosecution and the minor victim’s testimony in court, in December 2016 Satish took the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he gripped her breasts and tried to remove her clothes, Justice Ganediwala recorded in her verdict.
According to Justice Ganediwala, since Satish groped the child without removing her clothes, the offence cannot be termed “sexual assault”, being instead the offence of “outraging a woman’s modesty” under Section 354 of the penal code. While the first charge under the POCSO Act permits imprisonment up to three years, the latter limits it to one year, and Justice Ganeriwala imposed this sentence.
Stating that the order would set a “dangerous precedent”, attorney-general K.K Venugopal asked the Supreme Court to stay it as well as the accused’s release due on January 27. The top court stayed the order and also issued notice to the accused and the Government of Maharashtra to which they must respond in two weeks’ time.
Now, how can a girl of 12 be considered a “woman”? On what grounds was this interpretation made?
Soon after this incident, came a case involving a 50 year old man accused of assaulting a five year old girl. This time, Justice Ganediwala held that the accused holding the minor’s hand and undoing the zip of his pants could not be described as “sexual assault”, and would fall instead under the sexual harassment offences defined in Section 354.
The Protection of Children from Sexual Offences Act says that someone who “with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.
There is no mention of “skin-to-skin contact” here. Such touching is possible through the clothes the girl is wearing as much as through “skin-to-skin” contact. So how did the phrase arise at all?
If “skin-to-skin” touch were the sole ground for accusing someone of molestation, it would naturally mean impunity for those who grope women in public transport, an act so rampant that girls and women take it as “normal”, and though insulted and humiliated, do not complain or even confide in their loved ones.
Groping, or pressing people’s breasts and buttocks in public transport or on empty streets, or in schools or school buses, on staircases, does not need skin-to-skin contact at all. Do girls wander about with bare bodies? Do they move around semi-naked to invite skin-to-skin touch?
Is the skin more important than the body, the soul, the spirit, the personality of the female of the species? Or does the female live only with and within her skin? What about the humiliation and the insult the victim has to bear right through her life?
In two similar cases in January itself, the same judge acquitted two men accused of molesting two minors. In one Ganediwala clearly stated that “there were no signs of struggle in the person of the victim. It is not possible for a single person to simultaneously remove his own clothes and also remove the clothes of the girl and then rape her. The sexual act is backed by mutual consent.”
Would she label all rapes as “consensual”? Has she not heard the words “power” and “physical strength”? Has she not encountered cases of the rape of girls or women through force, and by holding a gun to her head or threatening to hurt her family? But probably she has never heard of such force, and so reduced the sentence from three years to one.
In yet another similar case in January 2019, Ganediwala upturned the verdict of guilt a lower court had slapped on a child rapist, claiming a “lack of enough evidence.” She insists these crimes do not fall under the POCSO Act. She maintains that “pulling a minor girl’s hand and at the same time opening the zip of his trousers in public cannot be considered ‘sexual assault’ according to Clause 7 of the Act.” Why not, we would like to know.
According to a UNICEF report from 2008 on the Dynamics of Child Sexual Abuse in India, India reports the highest number of sexual offences against children in the world at four lakh cases per year. We know the majority of such offences are not even reported, let alone prosecuted, yet India has no specific law to cover all shades of Child Sexual Abuse. The recent ruling is one sterling example where even a woman judge can take such a juvenile stance on acquitting a man who molested a 12 year old child.
In over 80% of cases, children are abused by adults or older children they know, trust or love and who can influence their behaviour by exerting power over them. Studies show that it is not only girls whom abusers attack. Both boys and girls are vulnerable. The damage endures long after violation.
Sexually exploited children suffer from sexual, physical and emotional harm that can last a lifetime. The issue remains close to parents’ hearts yet they do not even share, let alone discuss it. No wonder the graphic account of child sexual abuse in Pinky Virani’s book Bitter Chocolate made compelling reading, made waves, and made the stomach churn.
