Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., refused to grant relief to the petitioner against orders of the lower court restraining him from dispossessing the respondent from the subject property and also directing him to pay monthly maintenance to her.

Factual Matrix

Respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was stated that the respondent met petitioner in the year 2009 when she was already married. In the year 2014 after obtaining divorce, the respondent got married to the petitioner.

It is further stated that the petitioner in order to induce respondent to marry him did not disclose his marital status to her. Though petitioner executed a Marriage Agreement to how his genuineness and responsibility towards the respondent and her child from a prior marriage.

Respondent was subjected to physical and mental abuse by the petitioner. Hence, respondent had filed an FIR against the petitioner. Respondent also sought a restraining order from being evicted from the rented accommodation.

Analysis, Law and Decision

High Court expressed that DV Act is meant to provide for the rights of women to secure housing.  The Act also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household.

What does the aggrieved have to show?

Aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household.

Marriage Deed was filed which recorded that after the marriage parties will reside together as husband and wife and will be faithful towards each other. There were photographs of the petitioner and respondent that gave the impression that the parties were living together as husband and wife and had married each other.

As per the school record of the child, petitioner was the father of the child. Copies of the bank accounts were filed wherein the petitioner has been shown as a nominee of the account held by the respondent.

High Court noted that the couple held themselves out in the society as being akin to spouses which fact was evident from marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent.

In the present matter, respondent was told that the wife of the petitioner was on dialysis and that she would die soon.

Petitioners’ contention was that he had not entered into any rental agreement and the agreements, affidavits and the photographs produced by the respondent were not genuine.

Bigamous and Adulterous Relationship?

Bench expressed that question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her to any protection under the DV Act can be determined only after the evidence is led.

Metropolitan Magistrate, after the evidence led, had concluded that the respondent was not entitled to the protection of the DV Act and hence shall return the respondent the amount received by her as interim maintenance.

High Court held that the matter be heard by the trial court and should be decided finally within a period of 1 year. [Parveen Tandon v. Tanika Tandon, 2021 SCC OnLine Del 3044, decided on 7-06-2021]


Advocates before the Court:

For the Petitioner: Utkarsh and Anshu Priyanka, Advocates.

For the Respondent: Kamal Anand, Advocate

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that:

“…woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.”

Present matter unbundles the trauma of a couple in a live-in relationship, isolation of a single mother, love of mother for her child, rights of biological father, entangled in the legal vortex.

Factual Matrix

In the instant case, the couple – John and Anitha are Christian and Hindu by their faith. The couple realized that their intimacy knew no bounds to chart a new path in their life. They started to live together at Ernakulam, 65 km away from the parental house of Anitha. Opposition came from their own kith and kin. They waited to officially marry once their parents were convinced. But the biological instincts of the couple could not be arrested. Anitha became pregnant in the month of May 2019. She gave birth to a baby girl on 3/2/2020 in the Government Hospital, Aluva. The birth certificate indicates the names of father and mother of the child.

Issue in the present case revolves around the importance of the birth certificate.

In the revision memorandum it was stated that the John broke the relationship with Anitha and due to anxiousness, Anitha made attempts to contact John but all were in vain after which she had no option other than to approach the Child Welfare Committee, Ernakulam and handed over the child to the Committee.

Thereafter, she constantly kept in touch with the Committee and the Child Care Institution where the child was put up, to keep a track of the wellbeing of the child.

Further it was stated in view of the above that,

Desperation and plight of the motherhood reflected through the chat messages with the social worker depicted the care for the baby from the womb of the person, Anitha.

Since Anitha had executed the Deed of Surrender the said deed permitted the Committee to give the child for adoption.

Adding to the above, it was stated that the Committee, noting that Anitha is an unmarried mother, followed the procedure that delineated for surrender of the child by an unwed mother as referable under the Adoption Regulations, 2017. On completion of the procedure, the Committee declared that the child is legally free for adoption in the manner contemplated under Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Child was thereafter given in adoption to a couple by the Family Court order on 02-02-2021.

Petitioners approached the Court claiming themselves as a live-in relationship couple approached the Court.

Government Pleader and counsel appearing for the Committee submitted before the Court that the child had already been given in adoption and based on the submissions the Court had also opined that a writ of Habeas would not lie as the proceedings concluded under JJ Act have a legal colour.

Analysis, Law and Decision

Central issue in the present matter was more related to a perplexing mind; accepting and recognizing live-in relationships.

Did the law differentiate between unwed and legally wed couple in matters or relationships not connected with marriage, as a social institution?

In the context of juvenile justice does the law differentiate unwed couple and legally wed couple to recognize biological parents?

Section 38 of the Juvenile Justice Act declares the procedure for declaring a child legally free for adoption.

Separate procedure has been referred for orphan and abandoned child and a distinct procedure for a surrendered child.

Which of the procedures have to be followed was the question involved in the case.

Under Section 38 of the JJ Act, the procedure for declaration has been made for the abandoned child and surrendered child keeping in mind the paramount parental rights of biological parents.

Bench noted that the Committee had followed the procedure for surrendering the child applicable to an unmarried mother.

Following are the circumstances wherein normally a child needs care and protection from the State/Committee:

  1. Orphan or abandoned child
  2. Surrendered child

‘Surrendered child’ needs further classification under the law:

  1. surrendered by a married couple
  2. Surrendered by an unmarried mother.

Question that perplexed Court’s mind:

High Court expressed while placing their doubt that whether it can hold a couple in a live-in relationship not a married couple for the purpose of law related to surrender?

Married Couple v. Unwed Mother

Court elaborated that a married couple has to be understood in contrast to an unwed mother. Unwed mother must be understood as a mother who begotten a child as a result of sexual assault or in a casual relationship. Law in such circumstances places importance to the right of such mothers.

“… an unmarried mother would be recognised as a single parent and surrender by such mother is legally considered as valid in the light of Section 35(1) of JJ Act and Adoption Regulations 7(4), 7(7) and 7(21).”

Married Couple: Deed of Surrender

The procedure in case of a married couple ensures that both the parents execute deed of surrender and; if the child born to a married couple and surrendered by one of the biological parent, and whereabouts of the other parent are not known, the child shall be treated as an abandoned child and procedure under Regulation 6 will have to be followed. This procedure mandates an inquiry to trace out the biological parents or the legal guardians.

Context of Juvenile Justice Act | Whether a married couple includes a couple in a live-in relationship or not?

Parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage.

Live-in relationship

In a live-in relationship, a couple acknowledges the mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both.

 Supreme Court in its decision of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, considered live-in relation similar to the marriage provided it fulfills the requirements referred as follows:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

Bench remarked that, If a mother does not acknowledge any sort of relationship with the biological parent such mother has to be treated as an unmarried mother for the purpose of Juvenile Justice.

The woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.

No relevance of Legal Marriage

The dominant object of law in making the distinction between the married couple and unmarried mother is in the context of the nature of inquiry to be conducted for tracing the biological parents to restore the child with biological parents or guardian, and in such circumstances, the legal marriage has no relevance.

In matters of surrender by unwed mother no such inquiry is contemplated as she does not acknowledge any relationship with the biological father. 

A woman’s womb is precious possession of her personhood and no one can claim right over it; except with her consent.

Woman’s decision on fatherhood

Bench expressed that it is for the woman to recognize and decide on the recognition of fatherhood of child. If she chooses the preference to acknowledge the biological father at the time of conceiving, the father has every right to be recognized as a biological father

Adding to the above, Court stated that if at the time of conception, the mother has not recognized the right of fatherhood, in the context of JJ Act, a man has no right to recognize himself as the biological father, except with her consent and; she continues to be recognized as an unwed mother for the purpose of JJ Act.

“Decisional autonomy is the key in privacy rights.”

 Hence, in view of the above discussion, it can be held that a child born in a live-in relationship also has to be construed as a child born to a married couple.

In view of the facts and circumstances of the case, High Court noted that father’s name was disclosed to the hospital authority and name of the child was also given in the birth certificate in which father’s name was mentioned.

Birth certificate is a crucial document for public authority to verify that the child is born to a married couple or not.

 High Court held that Committee is not responsible to inquire about the legal status of the marriage as they are not the competent authority to decide on such status.

 Once it is found that the child is born to a couple, for all practical purposes of JJ Act, inquiry must be initiated as though the child belonged to a married couple. 

Bench held that due enquiry procedure postulates an institutional decision of the Committee treating the child as abandoned or surrendered. The enquiry in this case must have been an enquiry as contemplated for an abandoned child as only one parent alone had executed the surrender deed.

Once the declaration under Section 38 is found invalid, all consequential proceedings would also fall.

While parting with the decision, High Court added that:

“…in a country where the people worship Goddess, in the land where people have been taught about woman : Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaahkriyaah”. (Manusmriti (3.56)). [Gods abide where women are worshiped and all actions go futile where they are dishonoured] (Manusmriti 3 : 56),

 In the State where we boast cent percent literacy, our attitude to woman is despising; a single mother has no financial or social support. She faces emotional challenges and forced to believe she is destined to be isolated as result of guilt. She gets hardly any support from the system. It is time for the Government to evolve a scheme to support the single mother.

The anomie Anitha had to face as a single mother is the hurdle created by the society. Anitha never attempted to exterminate her womb; she bore the pain to give birth; like every mother she loved to care the child… but was not allowed by circumstances in the society. She thought without support of man, she cannot survive.”

Therefore, the certificate issued under Section 38 of the JJ Act is set aside and the revision was allowed and in view of the biological father’s willingness to take care of the child, Committee to consider the rights to claim for restoration under Section 37 and 40 of the JJ Act.[ XXXXXXXXXX v. State of Kerala, 2021 SCC OnLine Ker 1709, decided on 09-04-2021]


Advocates before the Court: 

By Advs. Sri. Rajit

Smt. Lekshmi P. Nair

R6 by Adv. Smt. B. Bindu

Case BriefsHigh Courts

Punjab and Haryana High Court: Sudhir Mittal J. sets aside the impugned order and directed the custody to the mother subject to the disposal of the main petition for custody.

The facts of the case are such that marriage between the parties was solemnized and two children being Lakhsin 11 years old boy and Tiana 04 years old girl have been born out of wedlock. The petitioner has alleged that she was thrown out of the marital house and she was not permitted to take her children along with her. A petition under Sections 7, 10 & 25 of the Guardians and Wards Act, 1890 (i.e. Guardian Act) has been preferred by the wife wherein an application under Section 12 has been filed for grant of interim custody which came to be rejected vide impugned order which has been challenged in the instant petition.

Counsel for the petitioners Vikas Kuthiala submitted that Tiana is below 05 years of age and Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (i.e. Minority Act) stipulates that custody of such child should ordinarily be with the mother. The mother is a working professional with a post-graduate degree capable of taking care of herself and her children. Moreover, as per the deposition of the children, it is clear that the children enjoy their mother’s company and the father and their grandmother speaks ill about the mother which can create a negative impact on their mind.

Counsel for the respondents Vikas Bahl submitted by relying on the maintenance application to state that the application is proof that she needs aid to take care of the children and is not capable to do so individually. It was also alleged that she is a person of questionable character and thus Section 6(a) of the Hindu Minority and Guardianship Act, 1956 does not apply to her as in her company children would suffer.

The Court observed that the petitioner is a postgraduate and that she worked as a teacher in Delhi Public School for 10 long years shows that the petitioner is a well educated and qualified lady and possesses the means to maintain her children. The fact that the children also miss their mother and wants to meet her and be with her goes on to show that the best interests of the children lie in the custody of their mother.

The Court thus held “Tiana is under 05 years of age and in view of Section 6(a) of the Minority Act, her best interests would definitely be served in the custody of the mother. Lakshin cannot be separated from his sister as the same would traumatize both of them.”

The court further directed the custody of the minor children be transferred to the petitioner within 07 days of receipt of a certified copy of this judgment and the father to have visitation rights on 1st and 3rd Saturday of every month between 3.00 pm to 5.00 pm at the residence of the petitioner and in her presence.

In view of the above, impugned order was set aside.[Megha Sood v. Amit Sood, Civil Revision No.1402 of 2020 (O&M), decided on 26-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

The Court, hence, permitted the Attorney General to file an appropriate petition against the said judgment and in the meantime, stayed the acquittal of the accused in the case in question.

The bench, further, issued notice to the accused and the State of Maharashtra returnable two weeks.

In judgment dated 19.01.2021, Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench, expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

The Bench expressed that the act of pressing of the 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’.

[Attorney General for India v. Satish, 2021 SCC OnLine SC 42, order dated 27.01.2021]


ALSO READ

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

Present appeal was filed against the Order passed by the Extra Joint Additional Sessions Judge, Nagpur by which the appellant was convicted for the offence punishable under Sections 354, 363 and 342 of the Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

In the instant matter, it was noted that the prosecutrix’s age was 12 years. Prosecutrix went to bring guava and did not come back for a long time. Informant i.e. the mother (PW1) of appellant started searching for her, her neighbour told her that the appellant who was staying in the vicinity of their house, took her daughter to his house and showed her the house of the appellant.

PW1 went called out the prosecutrix’s name. Later, she saw the appellant coming down from the first floor. She asked the appellant about the whereabouts of her daughter. He denied the presence of the prosecutrix in his house. Further, the PW-1 searched for her daughter on the ground floor and then she went up to the first floor. The room was bolted from outside. She opened it and found her daughter.

Informant took out her daughter from that room and her daughter narrated the incident that on the pretext of giving guava to her, the appellant brought her to his house and pressed her breast and when he tried to remove her knicker, she shouted. Thereafter he went out, after bolting the room from outside.

Question for Consideration

Whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act?

Appellant/accused was convicted for the offence of ‘sexual assault’ and added that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence.

Analysis and Decision

Bench expressed that the act of pressing of the 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’.

 The above would certainly fall within the definition of the offence under Section 354 of the Penal Code, 1860.

“The act of pressing breast can be a criminal force to woman/girl with the intention to outrage her modesty. Minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to fine.”

Further, the Court added that in the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fits into the definition of the offence as defined in Section 354 of IPC.

Court also noted that the prosecution’s case was not that the appellant had removed her top and pressed her breast. As such, there was no direct physical contact i.e. skin to skin with sexual intent without penetration.

Bench while concluding, held that the appellant shall be acquitted under Section 8 of the POCSO Act and convicted under minor offence under Section 354 of IPC.

In light of the above, criminal appeal was disposed of. [Satish v. State of Maharashtra, 2021 SCC OnLine Bom 72, decided on 19-01-2021]


Advocates for the parties:

Sk. Sabahat Ullah, Advocate for the appellant.

J. Khan, APP for the respondent.

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing a motor accidents claim application decided on the issue whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age?

In the instant application, the appellants challenged the award of the Claims Tribunal and sought enhancement of the award amount.

The deceased was aged 23 years at the time of the accident and was survived by his parents who claimed compensation. Deceased was self-employed as a Contractor earning Rs 55,000 to Rs 60,000 per month.

Claims Tribunal held that since the deceased’s father was working with the Delhi Police as Sub-Inspector, hence was not dependent upon the deceased. Also, the deceased’s mother could not be said to be dependent upon the deceased as her husband was employed with the Delhi Police.

Therefore the Claim Tribunal had concluded that the deceased’s parents were not entitled to compensation for loss of dependency but only to compensation for loss of the estate in terms of the principles laid down in Keith Rowe v. Prashant Sagar, 2011 ACJ 1734.

Analysis, Decision and Law

  • Whether the mother of the deceased is entitled to compensation for the death of her son?

Court opined that the parents of the deceased were considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents.

Further, the Bench added that

Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years.

With regard to loss of dependency, the Court held that it would be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.

Following are legislations that recognize the legal rights of parents to be maintained by their children:

♦ Section 125 of the Code of Criminal Procedure, 1973

♦ Section 20 of Hindu Adoption and Maintenance Act, 1956, and Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Bench referred to the following decisions:

Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

In Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 Supreme Court had reaffirmed the with respect to the rights of parents to compensation in case of accidental death of a child.

Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad, 2001 CriLJ 2111

In Sarla Verma v. D.T.C., (2009) 6 SCC 121, the Supreme Court held that the mother of the deceased bachelor is entitled to compensation by taking 50% of his income as loss of dependency on the premise that the deceased would not contribute more than 50% to his mother after marriage. The Supreme Court further observed that the mother would be considered as a dependent even if the father was employed and earning.

In light of the above decisions, the High Court held that the parents of the deceased child are considered as dependents for computation of compensation. Further, the Bench also highlighted that the principles relating to the loss to the estate shall apply only to claimants other than parents, children and spouse.

Hence, the deceased’s mother in the instant case is entitled to compensation for loss of dependency.

Compensation

Taking the income of the deceased as Rs 4,131 per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs 6,24,607.20.

Court directed the appellant 1 to remain present in Court before the next date of hearing along with the passbook of her savings bank account near the place of her residence as well as PAN card and Aadhaar card.

Appellant 1 shall produce the original passbook of her individual savings bank account with the necessary endorsement on the next date of hearing. However, the bank concerned shall permit appellant 1 to withdraw money from her savings bank account by means of a withdrawal form.

While concluding in light of the above-stated, Court asked for the copy of this Judgment to be sent to Delhi Judicial Academy to sensitize the Claims Tribunals about the principles laid down by this Court in the present Judgment. [Indrawati v. Ranbir Singh, 2021 SCC OnLine Del 114, decided on 08-01-2021]


Advocates for the parties:

For the Appellants: Santosh Kumar Chauriha, Advocate

For the Respondents: Atul Nigam, Advocate along with Anubhav Tyagi and Randhir Kumar, Advocates for R-3

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.D. Dhanuka and Surendra P. Tavade, JJ., upheld the trial court’s decision based on circumstantial evidence of a woman murdering her newly born female child.

Appellant has filed the present appeal against the judgment passed by the Additional Sessions Judge by which she was convicted for the offence punishable under Section 302 of Penal Code, 1860. Appellant has been acquitted for Section 317 IPC — Exposure and abandonment of child under twelve yearsby parent or person having care of it.

Facts of the Case

Informant while going to attend his duty saw a newly born female child lying beside the road, alive and lodged a complaint regarding this at the Uran police station.

PW11 in the meanwhile reached the spot and took the child to his house wherein his mother PW-6 bathed the child and later reported the matter to the police.

Later the police made enquiry with Hirabai who informed that she saw the appellant as pregnant, therefore police called the appellant.

Police took the child, appellant and Hirabai to the hospital wherein the child and appellant were allotted Cot No. 4. After a few hours, nurse found out that the child was movementless and on examining the child it was found that the child was dead.

In the postmortem report, it was found that the child died due to strangulation. Hence, crime no. 89 of 1993 was registered against the appellant.

Appellant was put under arrest and charge sheet was filed under Sections 317 and 302 IPC.

Trial Court on going through the evidence of record acquitted the appellant under Section 317 IPC but convicted her for the offence punishable under Section 302 IPC.

Circumstantial Evidence

When the case is based on circumstantial evidence, the motive plays a vital role. Generally, motive remains in the mind of the culprit, so it is difficult to prove it. The motive can be proved by circumstances of the case and the acts of the culprit.

In view of the circumstances of the present matter, it is clear that the custody of the child was with the appellant at the time of the death of the child.

The crucial circumstance against the appellant/accused is that she was having custody of the child in the hospital and ultimately child found dead on Cot No.4; so the effect of an acquittal of the appellant/accused under Section 317 of the Indian Penal Code would not come in the way of the prosecution to hold her guilty under Section 302 of the IPC.

It would have been a shame for the appellant/accused and the delivery of child would have affected her character since she was a widow for 8 years. Hence, the appellant/accused had a motive to done away with the life of the child

Homicidal Death

Prosecution has proved all the circumstances namely the abandonment of child, the good physical condition of the child prior to the death, the child was in possession of appellant/accused since the child was referred to the Rural Hospital, Uran. The prosecution has proved the homicidal death of the child.

Hence the Court concluded that chain of circumstances against the appellant was also proved beyond the shadow of reasonable doubt.

“There was nobody else except the appellant to commit murder of the said child.”

In view of the above circumstances, the appeal was dismissed. [Kamlabai Tukaram Gharat v. State of Maharashtra, 2020 SCC OnLine Bom 850, decided on 11-08-2020]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumar Phukan, J. allowed a criminal petition filed against the order of the trial court whereby the petitioner-husband was directed to hand over the custody of the minor daughter to the respondent-wife.

The parties were married to each other and a daughter was born to them — presently around 3 years old. After the birth of the daughter, the respondent developed physical ailments for which she had to undergo treatment at various places. It was an admitted fact that presently the parties were residing separately and the respondent was staying at her paternal home. The daughter resided with the father. In January 2019, the respondent was admitted to a hospital and requested the petitioner to bring the daughter to see her. The petitioner did accordingly. However, on the very next day, the respondent went to the petitioner’s house to bring back the daughter with her. She also filed a petition under Section 97 (search for persons wrongfully confined) CrPC, stating that under Section 6 of the Hindu Minority Act, she was the natural guardian of the child and therefore she should be given her custody. The trial court ordered that the custody of the daughter be handed over to the respondent. The said order was affirmed by the Sessions Judge in revision. Aggrieved thus, the petitioner filed the present petition.

A.M. Bora, Advocate made submissions on behalf of the petitioner. While the respondent was represented by Dr B.U. Ahmed, Advocate.

In hIgh Court’s opinion, for invoking the special provision of Section 97, it was to be seen whether the child had been wrongfully confined by the petitioner. In addition to the above facts, it was noted that the child was wrongfully left by the respondent in the custody of the petitioner because of her ill health since 2017. In such circumstances, it could in no way be stated as confinement. It was observed: “… strangely, the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 CrPC. The provision of custody of the child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the Code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating the proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.”

In such view of the matter, it was held that the impugned orders were passed without jurisdiction and were therefore quashed.[Sanjeev Kumar Singh v. O. Mema Devi, 2019 SCC OnLine Gau 2874, decided on 16-07-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu–Natal Division: This appeal was preferred before the Bench of Ploos Van Amstel, J., against the order of conviction and sentence of appellant passed by regional Magistrate for commission of crime of rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Act, 2007.

Facts of the case were such that the complainant a minor girl alleged appellant for the offence of raping her on several occasions between the years 2012 to 2015. The case went before the Magistrate where he was sentenced to life imprisonment.

Mkumbuzi, Counsel on behalf of the appellant submitted that complainant was not a competent witness and thus, her evidence was inadmissible on the ground that Magistrate had failed to establish if complainant understood the difference of truth and lies or the consequences of lying in accordance with Section 164(1) of the Act, 1977. Case of DPP v. Minister of Justice and Constitutional Development, 2009 (4) SA 222 (CC) was relied on where it was stated that a child unable to comprehend what it was to speak the truth cannot be admonished to speak the truth and hence, was an incompetent witness and cannot testify.

High Court was of the view that the rationale behind a person to be admonished to speak the truth was to make sure that the evidence was reliable without which the appellant’s right to a fair trial would be compromised.  Agreeing with the submissions of the appellant the conviction and sentence were set aside and the appeal was allowed. [SS v. State, CASE NO. AR 220 of 2018, Order dated 01-03-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. partly allowed a revision petition against the order of the trial court passed under Section 125 CrPC holding that the trial court erred in equalising the effort of both parents in the upbringing of their child.

The petitioner and the respondent got divorced in 2007. The petitioner filed an application under Section 125 CrPC claiming maintenance for herself and the minor child born from the wedlock. The trial court did not grant any maintenance to the petitioner holding that she was employed with an MNC and could maintain herself. It, however, directed the respondent to pay a sum of Rs 10,000 per month towards the maintenance of the child. Aggrieved thereby, the petitioner filed for the revision of the trial court’s order.

The High Court agreed with the finding of the trial court as far as the petitioner was concerned. It held that the petitioner could maintain herself. However, in regard to the maintenance of the child, it was held that the trial court’s approach of holding both parents equally liable to pay towards the maintenance of the child was not right. It was observed: “It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child… No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two.”

It was further held that the trial court should have awarded the maintenance from the date of filing of the application rather than the date of the order. Resultantly, the amount of maintenance to be paid by the respondent for maintenance of the child was increased to Rs 20,000 per month, payable from the date of filing of the application under Section 125 CrPC.[Lopamudra Bhuyan v. Surajit Singh, 2019 SCC OnLine Del 8267, dated 30-04-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal filed against the order of the family court whereby the appellant’s application demanding a DNA test of the child born to her wife was rejected.

In his pleadings, the husband had submitted that the wife was not living with him at the relevant time and therefore he could not be the father of the child born to her. This fact was denied by the wife in her written statement. Pertinently, the husband did not lead any evidence to substantiate his pleading that the wife was not in the matrimonial home at the relevant time. Consequently, his demand for conducting a DNA test of the child to ascertain the paternity was rejected.

The High Court did not find any infirmity in the family court’s order. Reference was made to Section 112 of the Evidence Act which says that birth during marriage to be a conclusive proof of legitimacy unless it can be shown that the parties had no access to each-other at the time when the child could have been begotten. But as noted above, the husband did not lead any evidence to substantiate his pleading. The High Court observed: An application seeking DNA test of the child in our view has very strong repercussion on the child and such an order for conducting a DNA test should be passed in very rare cases where very strong reasons are set out and in extreme circumstances when the matter cannot be resolved by leading evidence in the matter.” In such view of the matter, the appeal was dismissed. [CKP v. MP, 2019 SCC OnLine Del 8077, dated 02-04-2019]

Case BriefsForeign Courts

Supreme Court of Sri Lanka: In this appeal violation of Right to Equality was contended which was even upheld by the bench of Sisira J. De Abrew, A.C.J. and L.T.B. Dehideniya and P. Padman Surasena, JJ.

In the pertinent case, appellant complained that his fundamental rights guaranteed under Article 12(1) of the Constitution has been violated by Respondent 1. His child was not admitted to Grade I in Vishaka Vidyalaya, Colombo in the year 2014 even after the directions of the Respondent 2 to admit his child in the School.

The Court considered the material facts and directed the 1st respondent to comply with the direction within one month from the date of judgment and asked 2nd respondent to undertake the responsibility of informing further.[B.A. Nulara Nethumi v. S.S.K. Awiruppola, 2019 SCC OnLine SL SC 2, Order dated 24-01-2019]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Case BriefsHigh Courts

Madras High Court: The Bench comprising of N. Kirubakaran and Abdul Quiddhose, JJ. dealt with a petition in which father (i.e. petitioner) of a child approached the Court seeking euthanasia, as his child’s brain was injured and continued to be in persistent vegetative state.

Petitioner in the present case approached the Court seeking mercy killing or euthanasia for his child on account of the child’s brain being dead since past 10 years. He stated that the child was diagnosed with the condition of Hypoxic-Ischemic Encephalopathy (HIE) and after receiving treatments from various hospitals no sign of improvement was seen.

The notable facts as submitted by the petitioner were that the child was not aware of himself or anything happening around him as he was suffering from a severe form of brain damage in which only his reflexes worked for any movements or actions. On facing the above-stated circumstances and situation of the child, the petitioner approached the Court.

The Court on referring the decision of Supreme Court in Common Cause v. Union of India, (2018) 5 SCC 1 and by order dated 24-08-2018, appointed a 3 member search committee to nominate 3 doctors for child’s examination. On examination,n it was found that the child does not fit the category of persistent vegetative state and his condition cannot be reversed. Mr S. Raveekumar, representing Anirudha Medical Organisation (P) Ltd. and its director Dr P. Uma Maheswari convinced the Court to treat the child through Trigger Point Therapy. The results after the said therapy were seemingly good.

The matter was further listed for 08-11-2018 wherein photographs of the child were shown with a huge improvement from the Trigger Point Therapy.

Thus, the Court taking a suo motu stand impleaded Medical Council of India to answer ‘whether there is any Superspeciality Diploma or Superspeciality Course available in Trigger Point Therapy and Musculo Skeletal Therapy and how many experts are available in India for the said therapy. Central Government and Medical Council of India are also asked to submit their answers with regard to the above stated. The matter is listed for further hearing. [R. Thirumeni v. Union of India,2018 SCC OnLine Mad 3303dated 08-11-2018]

Case BriefsForeign Courts

Supreme Court of Pakistan: A 3-Judge Bench comprising of Gulzar Ahmed, Qazi Faez Isa, and Sajjad Ali Shah, JJ. while hearing a criminal appeal against conviction of a minor, pulled up the Trial Court and High Court for indulging the prosecution despite its failure to establish case beyond reasonable doubt.

The instant appeal was directed against the judgment of Lahore High Court convicting appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997. Police recovered narcotic drugs from the vehicle of appellant and his brother and arrested the appellant, but his brother absconded. At that time, appellant was not even a teenager. The Trial Court found him guilty and High Court confirmed his conviction. Aggrieved by these orders, the appeal was preferred before the  Supreme Court.

It was observed that as a Juvenile Court under Section 4 of the Juvenile Justice System Ordinance, 2000, trial court was obliged to protect the interests of the appellant. However, questions for determination of relevant factual issues were not formulated. Despite submission of police report after two years, Trial Court did release the appellant on bail as per Section 10(7) of the Ordinance. The High Court, while exercising appellate jurisdiction, perpetuated these errors.

The Bench noted several loopholes in the prosecution case such as poor investigation, prosecution’s admission of spoiling the case, no arrest warrant for the co-accused and incomplete witness accounts. The prosecution, having completely failed to establish its case against the appellant, let alone having established it beyond a reasonable doubt, appeal was allowed directing the appellant to be released.

The Court expressed anguish over the fact that due to inept investigation, a child remained incarcerated for over eleven years and attained majority in jail. Though the Juvenile Justice System Ordinance did not stipulate the period within which trials/ appeals should be concluded, but its stated purpose is to ‘provide for protection of children’. Considering the provisions of the Ordinance and Article 25(3) of the Constitution of Islamic Republic of Pakistan which envisages ‘protection of women and children’, the Court directed that trial of juveniles be concluded without delay and appeals against their conviction be prioritized and expeditiously decided. [Muhammad Adnan v. State, Criminal Appeal No. 90-L of 2017, decided on 13-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. modified the sentence of the appellant convicted under Sections 363, 376(2)(i) and 506 IPC along with Sections 5(m) and 6 of Protection of Children from Sexual Offences Act, 2012.

The appellant was accused of convicting rape upon a 9 years old girl. He was driver of the school transport facility availed by the girl. The trial court convicted him of the offences mentioned above and he was sentenced to life imprisonment under Section 376(2)(i) along with sentences for other offences. Aggrieved by the same, the appellant filed the instant appeal.

The High Court rejected all his submissions against the judgment of conviction by the trial court. The Court, on perusal of the facts, held that there was no merit in submission of the appellant that identity of the perpetrator of the crime was in doubt. The prosecution evidence was sufficient to bring home the guilt of the accused. Contentions were also raised regarding the sentence awarded. It was submitted that the appellant was 42 years of age and had a family of four minor children and a wife. The Court referred to its previous judgments and reiterated the parameters for assessing the quantum of punishment in cases of rape upon a child which include, inter alia:

  • Criminal and crime, both are important for purpose of sentencing;
  • Manner of commission of crime is to be considered;
  • Violence, if any accompanying the crime;
  • Whether the offender was in a position of fiduciary trust or exploited a social or family relationship;
  • Impact of the crime on victim;
  • Antecedents of the offender;
  • Passage of time since offence committed;
  • Rehabilitation of the rape victim; etc.

Taking into account all the facts and circumstances of the case and judging them on the aforementioned parameters, the Court was of the view that interest of justice would be met if the sentence of the convict-appellant awarded for the offence punishable under Section 376(2)(i) was reduced from imprisonment for rest of his life to 16 years rigorous imprisonment without remission. Sentence qua other offences was ordered to remain unaltered. The appeal was disposed of in the terms above. [Om Prakash v. State of Delhi,2018 SCC OnLine Del 10732, dated 21-08-2018]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench comprising of Jaishree Thakur J., addressed an appeal challenging the judgment of the lower court in regard to the reduction of sentence.

The brief facts of the case state that the appellant was a convict under Sections 366 & 376 of IPC, for committing the rape of a 6 year old child. On recording of the statements of the accused under 313 CrPC all the allegations on his part were denied and he pleaded innocence. Appellant was acquitted earlier by the session’s court. However, on appeal, the matter was remanded back by the High Court after setting aside appellant’s acquittal. And thereafter, he was convicted as aforesaid.

The Learned Counsel for appellant by placing reliance on the various precedents submitted that his Right of speedy trial under Article 21 of the Constitution of India grants him the leniency and reduction of sentence awarded as he already has faced trial for 25 years.

However, the Hon’ble High Court on observing the above said facts and circumstances and the instance of cases given by the learned counsel for appellant in reference to the reduction of sentence, stated that “Rape” is a heinous offence which along with physical scars impact the mental well-being of the child equally and in a huge extent and manner. While stating the above-mentioned contentions of the appellant, Court also focused on a case of State of Rajasthan v. Vinod Kumar, 2012(6) SCC 770, in this case also reduction of sentence was demanded for an offence of rape and the accused was granted reduction of the sentence, though the Hon’ble Supreme Court held that “deciding the case in such a casual manner reduces the criminal justice delivery system to mockery.”

Therefore, keeping a sight of all the stated contentions and instances placed upon, the High Court dismissed the appeal of the convict finding no merits on the defence that he had put forward as the fact that the victim a 6 year old child was raped, the award of sentence of 10 years was rightly imposed in accordance to Section 376(2)(f) IPC. [Inder Sain  v. State of Punjab;2018 SCC OnLine P&H 797; dated 04-05-2018]

Case BriefsSupreme Court

Supreme Court: Refusing to expand the scope of the word ‘child’ under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to include  the   “mental   age”   of   a   person   or   the   age determined   by   the   prevalent   science   pertaining   to psychiatry   so   that   a   mentally   retarded   person   or   an extremely intellectually  challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”, the bench of Dipak Misra and R.F. Nariman, JJ held that the Parliament has felt it appropriate that the definition of the term “age” by chronological   age   or   biological   age   to   be   the   safest yardstick   than   referring   to   a   person   having   mental retardation.

In the case where both the judges wrote their separate but concurring opinion, it was said that the POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. It may be due to the fact that the standards of mental retardation are different and they require to be determined   by   an   expert   body.   The   degree   is   also different.  If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether   there   is   a   consent   or   not.   In   certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula.

Explaining the scope of the power of the Court to interpret the word “child” to give it a broader meaning, it was noticed that the legislature despite having the intent in its Statement of Objects   and   Reasons   and   the   long   Preamble   to   the POCSO Act, had defined the term “age” which does not only mention a child  but adds the words “below the age of 18 years”. The Court said that had the word “child” alone been mentioned in the Act, the scope of interpretation by the Courts could have been in a different realm and the Court might have deliberated on a larger canvass.

The Court was hearing the appeal of a sexual assault victim suffering from Cerebral Palsy due to which though being a 38-year-old, her mental age is no more than 6-8 years. [Eera v. State, 2017 SCC OnLine SC 787, decided on 21.07.2017]