Sunday, August 4, 2013

INDIA - Child abuse law can’t have retrospective effect

Ex Post Facto
Original Article


By Sunil Baghel

Man accused of sexual abuse of his kids gets anticipatory bail as alleged offence was committed before the Protection of Children from Sexual Offences Act came into force in November 2012.

Refusing to give retrospective effect to the Protection of Children from Sexual Offences Act 2012 (PDF), the Bombay High Court has granted anticipatory bail to a man accused by his wife of touching his kids inappropriately.

Granting the man pre-arrest bail, Justice Sadhana Jadhav observed that though the period of crime, as mentioned in the wife's complaint, was June 2010 to mid-December 2012, there was nothing in the complaint to show that the man committed any offence after November 14, 2012. It was on this date that PCSOA - the new law enacted by Parliament for sexual offences against individuals below 18 years of age - came into force.

"There is nothing on record to show that the father had any contact with the children after 14th November, 2012, as he had withdrawn himself from the company of the complainant and their children since mid-December, 2012 and during that intervening period, he hardly stayed at home and hence, he would be entitled to grant of pre-arrest bail," observed Justice Jadhav in her order.

Advocate Aabad Ponda, appearing for the father, had argued that "assuming that the father had committed the offences, the provisions of the Act do not have a retrospective effect."

The court has, however, restrained the man from getting in touch with his wife and children.

The wife had lodged an FIR at Byculla police station in April this year, referring to incidents between June 2010 and December last year. Her husband was booked under various sections of the PCSOA and section 354 of the Indian Penal Code for molestation.

According to her complaint, the couple got married in 2002 and has a nine-year-old-son and a six-year-old daughter from the wedlock. They started living in Mumbai from 2009. There used to be intermittent quarrels between the two, but since 2010, the man allegedly refused sexual contact with the wife. She filed a petition seeking divorce in March this year.

The wife then allegedly noticed obscene photographs in her husband's email, showing him in an "objectionable position" with certain male friends. "The images revealed that he was a gay," alleges her complaint. It also says that one day, in 2010, the wife woke up from sleep to see that her husband was "tickling their daughter and was touching her inappropriately," to which she objected.

Son complained about 'inappropriate' touch

Her son had also allegedly told her that his father "used to touch him inappropriately and had once bitten him on his butt." Her complaint also says the son had disclosed to his friend that he was fed up of life. When his teacher heard about this, she referred him to a school counsellor. By this time the father had already left home. The son had then observed to the counsellor that now that his father did not stay with him, he would not be touched inappropriately.

The mother's advocates Manoj Mohite and Shailesh Kantharia submitted before the court that it was on the basis of the disclosures made by the child to the counsellor that the compliant came to be filed.

The father's advocate argued that the children had been made a scapegoat to satisfy the personal vendetta of their mother. He said the mother must have misconstrued the intimacy between the father and children or had "influenced them against her husband to create evidence for seeking divorce and alimony."

He also produced photographs of a three-day family outing in October last year at a resort near Mumbai. These pictures, clicked by the mother herself, showed the children in a swimming pool with their father.

The advocate submitted that the pictures did not indicate that the children were scared of their father or that they avoided touching their father.

The court, however, refused to make observations on the facts of the case, and granted anticipatory bail to the father for Rs. 15,000 and one or two sureties of the same amount.

He has been directed not to tamper with evidence, to cooperate in the investigation and report to the police every Sunday till filing of the charge sheet.

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