- The “Skin-To-Skin” Ridicule
BY VEDIKA CHAUBEY ADVOCATE MUMBAI
The victim was offered guava as the accused took her to his home. What followed was an unprecedented and traumatic experience which rolled out into a legal battle for 4 years. Unfortunately enough, the battle did not end when the verdict was announced but begun from the very controversial verdict. With the recent infamous “skin-to-skin” verdict doing rounds on media and gaining hatred, disbelief and distrust in the judiciary, the society is seen collectively condemning and fighting back. The layman’s version of the verdict sounds extremely treacherous, but people with legal knowledge might look at it at a less hateful manner. Although, it stands clear that the verdict is condemnable and shameful. No mother will wait for “skin-to-skin contact” or the accused to “remove clothes” of her child for the crime to be defined as a “sexual assault”.
Justice Pushpa Ganediwala, who was awarded gold medals in her B.Com, L.L.B. and L.L.M. examinations, passed the order that act of groping the 12-year-old girl’s breast did not constitute sexual assault punishable with POCSO but instead constituted the offence of outraging a woman’s modesty under section 354 of IPC. The reason being, according to the Court, the girl reportedly had her top on and since there was no “skin to skin contact”, the groping could not be ruled as an “assault”.
Section 354 of IPC states that “whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.” Whereas, 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”.
Hence, the Court noted that this “physical contact” mentioned in the definition of sexual assault must be “skin to skin” or direct physical contact. For it to come under POCSO definition of “sexual assault”, the court would require “stricter proof and serious allegations” which can amount to a minimum of 3-5 years in prison. How ridiculous is it to say that a crime of this scale happening to a 12-year-old girl is not “serious” enough ? The Supreme Court further stayed the Bombay High Court’s controversial order acquitting an accused. “Bombay High Court has apparently acquitted the accused under section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin to skin contact. Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit A G Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under section 8 of the POCSO act. Issue notice to accused returnable in two weeks,” the top court ordered.
Being a family lawyer and practicing law, I find this verdict not only personally threatening but also disastrous as it paves way for many such crimes to be neglected, under-punished and safeguarded. At one hand we are encouraging safety of women and the rights of the girl child and on the other, we see a verdict destroying the very purpose of it. I am a mother of two daughters and I solidarily stand with all those mothers who are struck with shock, disbelief and fear for their kids in the light of this judgment. A crime of this scale is heinous and must be treated so, on not treating which can lead to unprecedented harm to the victim and the society at large.
I have encountered a case of a 3-year-old girl, who has been molested by her own uncle since she was 1.5 years old. To have a family member molest her, was unimaginable for her mother or anybody for that matter. Her working mother never sensed or thought of the unimaginable until the girl started doing it with her small Doll when she was 2.5 years of age. It came as a shock to her mother and to clarify she immediately took her girl to the doctor. The doctor confirmed her that though she is not the victim of rape but she will be the one very soon. “Someone has been trying to penetrate into her since long” said the doctor to the mother. The girl’s own uncle had been desperately trying to remove her clothes and sexually assault her in absence of the mother. Then mother pursued it further and put the uncle behind bars. Interestingly, to the mother’s shock, her husband and father of the girl have been helping the accused uncle to get him out of jail and trying hard for getting his bail giving several medical reasons. These cases are heart-wrenching to listen to, and many like this do not even get filed.
As parents, we need to destroy these elements by reporting about them and teach our sons what to do and what not to do. Our girls have been fighting, are fighting and will keep on fighting for their rights until the men are not taught what not to do. With the amount of mental trauma the victim goes through, or the little knowledge she has as she is too young to understand that what is a “bad touch” or an undesirable act, no case can be called “not serious enough” to qualify as a sexual assault. With this controversial case, two things will be sure- what function does the skin to skin touch play, if at all it and that the judiciary is capable of passing such heinous verdicts if not intervened by the Supreme Court. These very instances give a chance to the termites in our society. We have in many ways progressed as a liberal society towards gender equality and many milestone judgments. But this judgment shook the hopeful self inside us. There has been a ray of hope at the end of the tunnel as the Supreme Court stays the verdict passed by the infamous Justice Pushpa Ganediwala.
Few details about WHO IS Justice Pushpa Ganediwala :
Apart from gold medalist in her examinations, she has cleared the NET-SET Examination on the very first attempt. She practiced in Amravati District Court and also she was on the panel of many banks and insurance companies. Not only this, she was an Honorary lecturer in various colleges for giving lectures to M.B.A. and L.L.M. students. She was directly appointed as District Judge in the year 2007 and held postings as City Civil Court, Mumbai, District Court and Family Court at Nagpur, Joint Director of Maharashtra Judicial Academy, Principal District & Sessions Judge at Nagpur, Registrar General of High Court of Judicature at Bombay, Principal Judge at City Civil Court, Mumbai. Then, she was appointed as judge of Bombay High Court on 13th February, 2019.
