In a landmark judgment, the Delhi High Court clarified that touching and pressing a minor girl’s lips, absent any sexually motivated advances, does not constitute “aggravated sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act. The ruling was delivered by Justice Swarana Kanta Sharma on February 24, amidst a plea concerning the uncle of a 12-year-old girl.
The court acknowledged that while the actions might violate the girl’s dignity and could outrage her modesty, they do not meet the stringent legal requirements for a charge under Section 10 of the POCSO Act. However, the uncle was not completely exonerated, as the court maintained a charge under Section 354 of the Indian Penal Code (IPC), which addresses assault or criminal force to a woman with intent to outrage her modesty.
Justice Sharma highlighted that the essential elements of an offence under Section 354 IPC are clearly met, emphasizing that this provision criminalizes the use of criminal force or assault against a woman or minor girl, particularly with the intent to outrage modesty. The judge drew upon Supreme Court rulings that interpret modesty in the context of dignity and bodily autonomy.
In her ruling, Justice Sharma pointed out that the minor did not allege any overtly sexual act nor did she claim she was subjected to a sexual assault in her statements to the magistrate, police, or the Child Welfare Committee (CWC). The absence of evidence pointing to a sexually motivated advance was crucial in negating the foundational requirement of ‘sexual intent’, essential for a POCSO charge.
The verdict also shed light on the minor’s background, noting she was abandoned by her mother at a young age and lived in a child care institution, visiting her family when the incident occurred. The court underscored that any inappropriate physical contact by a family member in a position of trust, especially under such circumstances, represents a violation of dignity, bodily autonomy, and modesty, warranting the charge under IPC.
Further criticism was directed at the trial courts for their practice of issuing “cryptic, non-speaking, proforma orders” with inadequate reasoning, especially in cases where a person faces significant incarceration risk. The High Court stressed the need for judicial orders to demonstrate a thorough application of mind to the facts and arguments presented.
