In an eye-brow raising development, the Bombay High Court has ruled that groping a child’s chest without removing her clothes or by sliding hands under her clothes, does not amount to sexual assault under the Protection of Children from Sexual Offenses (POCSO) Act.
The Bombay High Court in its observation stated that groping a child’s breasts without ‘skin-to-skin contact’ can invite charges of molestation only under the Indian Penal Code (IPC), but not the POCSO Act.
The single-judge bench of the Bombay High Court led by Justice Pushpa Ganediwala passed the judgement last week.
The Court made the observation while hearing a case, where a 39-year-old man was accused of sexually assaulting a 12-year-old girl.
The Court found that the man was not guilty of sexually assaulting the minor girl as he had not disrobed her of her clothes, meaning “there was no skin-to-skin contact”.
Justice Ganediwala said that his act “does not fall in the definition of “sexual assault”.
“Considering the stringent nature of punishment provided for the offense, in the opinion of this court, stricter proof and serious allegations are required,” Justice Ganediwala said in her judgement.
“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,” Justice Ganediwala said in her judgement.
“The offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC section 354,” the Bombay High Court held.
Notably, Section 354 of the IPC invites a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.
Meanwhile, the ruling of the Bombay High Court has evoked sharp reactions from several quarters of the society across the Country.
The International Planned Parenthood Federation (South Asia) has expressed grave concern on the ruling of the Bombay High Court.
The IPPF stated that the judgment is “deeply flawed”.
“We are concerned about the judgement of the Indian court and believe it fails to take into account that child sexual abuse occurs when a person uses his/her power over a child or youth,” the IPPF said.
Our statement on the recent ruling of the #Indian High Court that "the act of #groping a child’s breast, without any skin-to-skin contact and sexual intent, is not #sexualassault" under the Protection of Children from Sexual Offences (#POCSO) Act. #Childrights #VAWG #HumanRights pic.twitter.com/Tv5yMiD9m2
— IPPF South Asia Region (@ippfsar) January 25, 2021