New Delhi : The Supreme Court on Thursday came down heavily on Bombay High Court on its ‘narrow interpretation’ of law relating to child abuse and set aside its much debated verdict.
On 19 January, Justice Pushpa Gandediwala of Bombay High Court’s Nagpur Bench held that there must occur ‘skin-to-skin contact with sexual intent’ for an act to be considered as sexual assault. The judge, in her verdict said, mere groping without disrobing will not fall under definition of sexual assault.
With that, she modified the 3-year jail term for a 39-year-old man who fondled a 12-year-old girl’s breasts when she walked into his house on being lured with getting guavas to eat.
“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,” read the Bombay HC verdict.
Slamming that take, the Supreme Court ruled that “skin to skin” contact is not necessary for a crime to be considered under POCSO. The Bench questioned the interpretation of touch asking “What does touch mean, simply a touch? Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that Parliament intended.” and further that courts “cannot create ambiguity in the provision.”
POCSO Act defines sexual assault as when someone “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”.
Arguments : Senior Advocate Sidharth Luthra appeared for the convict and said “sexual intent requires physical contact but, in this case, the clothing was touched not the skin.”
Attorney General KK Venugopal opposed arguing that the interpretation would mean that “someone can wear a surgical glove and exploit a child and get away scot-free”. The verdict will set a precedent that would be ‘devastating’, he added.
The Attorney General, National Commission of Women, State of Maharashtra and Youth Bar Association of India had challenged the Bombay HC verdict stating that it would have wide impact on entire society.
On the side : The court said this is the first time that the Attorney General had filed an appeal on the criminal side.
Senior advocate Sidharth Luthra appeared for the accused as an amicus curiae, while his sister, senior advocate geeta Luthra, appeared for the National Commission of Women. The Supreme Court said this time a brother and sister have also opposed each other.