People across the country have reacted with dismay and outrage after a Kerala court made an observation that the offence under sexual harassment is not prima facie attracted when the woman was wearing a “sexually provocative dress”. This observation was made by the District Sessions Court last week while granting bail to 74-year-old social activist-writer Civic Chandran in a sexual abuse case.
In its August 12 order, the Kozhikode Sessions Court had observed that the photograph of the complainant, produced by the accused along with the bail application, would explain that she “herself is exposing to dresses which are having some sexual provocative one” and “it is impossible to believe that a man aged 74 and physically disabled can forcefully put the complainant on his lap and sexually press her breast”.
The court said in order to attract IPC Section 354 A (Sexual harassment and punishment for sexual harassment) there must be physical contact and advances involving unwelcome and explicit sexual overtures, there must be demand or request for sexual favors and there must be sexually colored remarks.
“The photographs produced along with the bail application by the accused would reveal that the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So sexual 354A will not prima facie stand against the accused,” the court had observed and granted bail to the accused saying it was a “fit case wherein the accused can be granted bail.”
This verdict has attracted criticism from social media users who have asked the court to define “sexually provocative dress”. It is to be noted here that this has not been the first case where the citizens have openly expressed their anger over a court’s judgement. Let’s have a look at some of the court judgments that stirred a row across the country:
• ‘Skin-to-skin’ contact verdict: Groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act, the Bombay High Court had said last year. Justice Pushpa Ganediwala, who had been serving at the Nagpur bench of the Bombay High Court, in a judgement passed on January 19 held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault. She had said in her verdict that mere groping will not fall under the definition of sexual assault.
Justice Ganediwala modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.
As per the prosecution and the minor victim’s testimony in court, in December 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he gripped her breast and attempted to remove her clothes, Justice Ganediwala had recorded in her verdict. However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354, the high court had held.
Justice Ganediwala had faced widespread criticism over her judgement in the case. Later, a Supreme Court bench quashed the Bombay HC verdict and said the most important ingredient of constituting sexual assault is sexual intent and not skin-to-skin with the child.
• Oral sex with minor is not ‘aggravated sexual assault’: Reducing the jail term of a man convicted of sexually assaulting a 10-year-old boy, the Allahabad High Court had last year observed that “oral sex” with a minor does not come under the “aggravated sexual assault” category in the POCSO Act. In the judgment, the court had said that the crime falls in the “penetrative sexual assault” category which is punishable under Section 4 of the POCSO Act.
In 2016, an FIR had been filed in the Jhansi district against a man accusing him of having “oral sex” with the 10-year-old son of the complainant in exchange for Rs 20. The boy had also been threatened with dire consequences if he told anybody about the incident.
“From the perusal of the provisions of POCSO Act, it is clear that offence committed by appellant neither falls under Section 5/6 of POCSO Act nor under Section 9(M) of POCSO Act because there is ‘penetrative sexual assault’ in the present case,” Justice Anil Kumar Ojha had observed. The crime does not fall in the category of ‘aggravated sexual assault’ or sexual assault. It comes in the category of ‘penetrative sexual assault’ which is punishable under Section 4 of the POCSO Act, he had said.
“After going through the records and provisions of POCSO Act, I am of the considered opinion that the appellant should be punished under section 4 of POCSO Act because the act done by appellant falls in the category of penetrative sexual assault,” the judge had said.
• Gauhati HC Calls Accused in Rape Case ‘state’s future assets’: Last year, the Gauhati High Court granted bail to a student of the IIT-Guwahati, accused of raping a fellow student, calling both of them “the state’s future assets”. Justice Ajit Borthakur had said that there is a clear prima facie case as alleged against the petitioner based on all the evidence.
“However, as the investigation in the case is completed and both the informant/survivor girl and the accused are the state’s future assets being talented students pursuing technical courses at the IIT, Guwahati,…continuation of detention of the accused…if charges are framed, may not be necessary,” the order had said.
• ‘Chance for Course Correction’: Granting bail to an 18-year-old rape accused, the Gwalior Bench of the Madhya Pradesh High Court had last year stated that “a chance be given to the applicant for course correction”. Justice Anand Pathak had relied on the submission that the applicant was a young boy aged 18 years without a criminal record.
The order had stated, “considering the submission of learned counsel for the parties and the fact that applicant is a young boy aged 18 years without any criminal record, therefore, a chance be given to the applicant for course correction.” The Bench of Justice Pathak was hearing the plea of an 18-year-old man accused of committing offence punishable under Sections 376(2)(n) (Rape), 363 (Kidnapping), 342 (Wrongful Confinement), 323 (Causing hurt) of the Indian Penal Code and Sections 5 and 6 (Aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act (POCSO Act).
• Chhattisgarh HC verdict on marital rape: Last year, the Chhattisgarh High Court discharged a 37-year-old man in a rape case filed against him by his wife after observing that sexual intercourse or any sexual act with a legally wedded wife is not rape even if done by force or against her wish. However, the HC did not grant any relief to the man who was also charged under IPC section 377 (unnatural offences).
Justice NK Chandravanshi delivered the judgement on August 23, 2021 in a criminal revision plea filed by the man and his two family members, seeking to quash rape charges (against him) and other offences framed against them. As per the order, the victim married the man, a native of Changorabhata in Raipur, in 2017. After a few days of marriage, the woman’s husband and her two in-laws allegedly started harassing her for dowry. The woman later lodged a complaint at the Bemetara police station of Bemetara district against the three.
“Counsel for the applicants submits that the complainant and the applicant No. 1 (man) are legally wedded wife and husband, therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the IPC are spelt out against him, because, in India, marital rape is not recognized and the same is not an offence in view of Exception II of Section 375 of the IPC,” the HC had said.
The order had said, “Exception II of Section 375 of the IPC, referred to above, makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
The judge had said the charge under IPC section 376 (rape) against the man was erroneous and illegal.
“In this case, the complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, the charge under Section 376 of the IPC framed against the husband is erroneous and illegal. Hence, he is entitled to be discharged from the charge under Section 376 of the IPC”, it had said.
The HC had said no illegality has been committed in framing other charges against the accused.
(with inputs from PTI)
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