Category Archives: Minors

Rehauling Sexual Assault Law in India

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Comments on the Proposed Amendments to Criminal Law

The Criminal Law (Amendment) Bill, 2010 has been made available.  The Bill contains proposed amendments to two laws: the Indian Penal Code and the Criminal Procedure Code. The former is a substantive law while the latter is a procedural law. In other words, the Penal Code states what would constitute and offence and what the punishment for such offence would be. The Criminal Procedure Code, on the other hand, specifies the procedure required to be followed to implement the law laid down in the Penal Code.

The Bill, inter alia, redefines rape by proposing to amend Section 375 of the Indian Penal Code in the following terms:

A man is said to commit ‘sexual assault’  if he –

(a) penetrates the vagina, the anus or urethra or mouth of any woman with

(i) any part of his body; or

(ii) any object manipulated by such man

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulates any part of the body of woman so as to cause penetration into the vagina, the anus or the urethra of the offender by any part of the woman’s body;

(c) introduces any part of his penis into the mouth of woman,

under the circumstances falling under any of the following six descriptions:-

Firstly.-Against her will.

Secondly.- Without her consent

Thirdly.- With her consent when such consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which she gives consent.

The exception for medical/hygienic purposes in Section375(a), however, doesn’t seem to require consent. What this would mean is that if the penetration were for medical purposes, and such purposes are not defined, the doctor, would not be required to obtain the consent of the woman so as to avoid falling foul of the provisions of this section if the proposed amendment were to become law. This, of course, could be considered to fly in the fact of the lived experiences of many women. It completely denies the existence of medical rape. It would also seem to exclude from the scope of sexual assault such things as medical students performing pelvic exams on unconscious women without their consent. While it is possible to see the requirement for such an exception, it is difficult to understand why the exception does not state: “except where such penetration is carried out for proper hygienic or medical purposes with the consent of the woman.”

After defining sexual assault, the proposed amendment then states the punishment for sexual assault and lists specific sexual assaults which would be dealt with in a stricter manner in Section 376 of the Indian Penal Code. Under Section 376(1), sexual assault would normally be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life and, possibly, also a fine. Under Section 376(2), sexual assault by certain persons and/or under certain circumstances would be treated more seriously. Specifically:

Whoever,-

(a) being a police officer commits sexual assault -

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a women in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits sexual assault on a woman or minor in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits sexual assault on any women or minor inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits sexual assault on a woman in that hospital; or

(e) being relative of, or person in a position of trust or authority towards, the women assaulted commits sexual assault with such woman; or

(f) commits sexual assault on a woman knowing her to be pregnant; or

(g) commits sexual assault on a woman when such woman is under eighteen years of age; or

(h) commits gang sexual assault,

(i) being in a position of economic or social or political dominance commits sexual assault on a woman under such dominance, or

(j) commits sexual assault on a woman suffering from mental and physical disability, or

(k) while committing sexual assault causes grievous bodily harm, maims or disfigures or endangers the life of a woman, or

(l) commits persistent sexual assault,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be imprisonment for life and shall also be liable to fine.

Thus, Section 376(2), if passed, would be an enhanced version of the current law as it introduces some new provisions such as that which deals with sexual assault by relatives.

Further, in the case of certain persons such as those who are in positions of authority or are public servants, sexual intercourse which does not amount to sexual assault would also be an offence under Section 376B of the Indian Penal Code in specified circumstances. If the perpetrator had taken advantage of his position and induced or seduced any woman either in his custody or under his charge or present in the premises and has sexual intercourse with her, the sexual intercourse would amount to sexual assault. The punishment for such an offence would be either simple or rigorous imprisonment for a term which may extend to 10 years but shall not be less than 5 years and, possibly, also a fine.

There has also been proposed an amendment to the Indian Penal Code (Section 376A) to deal with the sexual intercourse by a husband upon his wife during separation. Under this provision:

Whoever commits sexual assault with his own wife, who is living separately under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may be extend to seven years and shall also be liable to fine.

Despite the hype about the proposed amendments regarding rape being gender-neutral, it is clear from Sections such as 376(2) that many of the provisions are gender-specific. For example, sexually assaulting a disabled woman would, at least theoretically, under Section 376(2)(j) result in an enhanced punishment but there would be no such enhancement of the punishment if the victim were male.

Also, the provision of Section 376(2)(g) which states that those who commit ”sexual assault on a woman when such woman is under eighteen years of age” is unclear. It has also been proposed to add a Section (dealt with later in this post) which deals with the sexual assault of minors with a minor being defined as a person who is under the age of 18. Section 376(2)(g) deals with the sexual assault of women in this same age group. It is not clear why it has been thought to be necessary to have two provisions which deal with the sexual assault of female minors, or which Section would actually apply in such a case.

One explanation would be that Section 376(2)(g) actually intends to deal with the age of consent. However, if this is the intention, it is not truly reflected by the wording of the law. Assuming that Section 376(2)(g) lays down the age of consent for women and states that it is 18 years of age, whether this age is too high is debatable. What appears to be a lacuna here, however, is that the age of the man is not taken into consideration at all. There should probably have been a proviso inserted into this clause which so that it would come into effect only if the other person involved was “x” number of years older than the complainant/victim. In other words, it is probably not ideal to have a law which states that if one person was 18, and the other 19, the consent of the 18 year old would be immaterial since, presumably, the reason for having an age of consent is to protect minors from adults, and not from other minors or from persons who are at the threshold of majority.

The provision which is proposed to be inserted into the Penal Code to deal with the sexual abuse of minors states:

(1) A person is said to commit “sexual abuse of minor” against a minor under the age of eighteen years if the person-

(i) penetrates his penis into the vagina, the anus or urethra or the mouth of a minor;

(ii) manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of any minor with or without the will or consent of the minor.

Explanation-Mere penetration is a sexual assault within the meaning of this section.

(2) Whoever commits any offence of sexual abuse of minor shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

(3) Whoever, with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished with imprisonment of either description which may extend to ten years.

(4) In this section,- (a) ‘minor’ means —  a person under eighteen years of age.

There have been discussions about the need for such an amendment to the law for many years now. So far, it has only been possible to deal with child abuse under the existing Section 377 of the Indian Penal Code which deals with so-called unnatural offences. The Section has been notorious for its widespread misuse — consenting adult homosexuals have routinely reported being threatened with its implementation since the Section makes homosexual acts an offence even if they are between consenting adults.

As mentioned at the beginning of this piece, it has also been proposed to amend the Criminal Procedure Code so implement the changes in the Penal Code. Strangely enough, with respect to child sexual assault, the following amendment has been proposed:

198B. No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) of section 376C of the Indian Penal Code, except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by his father, mother, brother, sister or by his father’s or mother’s brother or sister or by any other person related to him by blood or adoption, if so permitted by the court.

This means that in cases of child sexual abuse, a complaint may only be filed by the victim or certain relatives of the victim. It does not seem realistic to expect a child to file, or even be able to file, a complaint. And, considering the way in which child sexual abuse, particularly when the abuser is a relative, is veiled in Indian society, it is extremely difficult to understand why relatives would be listed as the only possible complainants other than the victim. Under this provision, it appears that a complaint cannot be made by such persons as doctors and other health-care providers, caregivers or educators who may, in fact, be in a better position than relatives to make such a complaint.

Once a complaint has been made though, and the trial is in progress, it has been proposed to insert a provision into the Criminal Procedure Code which would allow the judge to take appropriate measures to ensure that the alleged minor victim of sexual assault or any other sexual offence is not confronted by the accused, although the court must also uphold the right of cross-examination of the accused.

Thus, although the aim seems to be to redefine and restructure sexual assault law in India, the proposed amendment, as it now stands, is not without its flaws.

By Nandita Saikia

Juveniles Defined: 2000 Law Applies

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A Juvenile Justice Act was passed in 1986. Fourteen years later, another Juvenile Justice Act was passed in 2000. Both of these Acts were meant to ensure that children who committed crimes were treated humanely and that they were given an adequate opportunity to reform themselves away from the influence of hardened criminals.

One of the main problems with the application of the criminal justice system to juveniles though has been that the two statutes of 1986 and 2000 both defined juveniles differently. Under the 1986 Act, juveniles were defined as those under the age of 16 while under the 2000 Act, juveniles were defined as those under the age of 18.

The result of this inconsistency was that all those who committed crimes when they were over the age of 16 and under the age of 18 between the years 1986 and 2000 wound up being treated like adults. Many of them are still undertrials today.

One such person, Hari Ram, approached the Supreme Court for relief. He had allegedly committed an offence at the age of 17 and was being treated as an adult. A bench of the Supreme Court comprising Justices Altamas Kabir and Cyriac Joseph allowed his plea to be treated as a juvenile and settled the inconsistency between the two statutes.

The Court, in the case of Hari Ram v State of Rajasthan, said that it was unacceptable to have two different definitions operate simultaneously. It said, “…all persons who were below the age of 18 years on the date of commission of the offence even prior to April 1, 2001 [the day the 2000 Act came into force] would be treated as juveniles even if the claim of juvenility was raised after they had attained the age of 18 years on or before the commencement of the Act and were undergoing sentence upon being convicted.”

Thus, the 2000 law has now, thankfully, unequivocally been given precedence over the 1986 Act. This should come as welcome news to all those who can now benefit from the definition of juveniles under the 2000 law.

Another Incident of Ragging

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Every once in a while, the news of a student dying because of ragging hits headlines. Usually, it’s followed by a few debates on the telly after which everyone but those involved in and affected by the issue forget all about it. Until the next time it happens.

On March 16, 2009, the issue came up before the Supreme Court following the death of Aman Kachroo, a student of Dr Rajendra Prasad Medical College, Kangra, Himachal Pradesh. Aman was ragged following which he died. It isn’t entirely clear what exactly it was that caused him to die: he suffered a perforated eardrum and internal injuries but there are queries about whether the doctor who attended to him was negligent in treating him.

In addition to this, Additional Solicitor General Gopal Subramaniam also spoke of the death of a girl student of Agriculture and Engineering College, Bapatla, Andhra Pradesh after allegedly being forced to dance obscenely.

The Supreme Court did not take the issue lightly and Justices Arijit Pasayat and A K Ganguly issued a show cause notice to the Principal and Registrar of the Dr Rajendra Prasad Medical College asking them to explain why contempt proceedings should not be initiated against them for not complying with the court’s directions to prevent ragging.

The notice issued by the Supreme Court also required the Principal and Registrar of the Medical College to state what action was taken after the ragging incident was brought to their notice. In addition to this, the court asked the Medical Council of India to inquire into the allegations of medical negligence against the doctor who treated Aman, and the Chief Secretaries and Directors General of Himachal Pradesh and Andhra Pradesh to file separate affidavits stating what they have done to comply with the court’s earlier directions and what action has been taken against the two institutions as well as against the students who did the ragging.

Justice Arijit Pasayat said in no uncertain terms, “It appears that the concern shown by this court has not been taken seriously by the authorities. Prima facie it is contempt of this court. The directions issued by this court on May 16, 2007 and February 11, 2009 on the basis of the R K Raghavan Committee Report to end the menace have not been complied with. Time has come for cutting off financial age to there institutions which are not complying with the directions.”

Perhaps the possibility of this happening i.e. financial support being cut will actually get institutions to do what they can to stop ragging. The University Grants Commission has also said that it will finalise stringent rules on the issue by the first week of April 2009.

The intervention of the Supreme Court and the measures of the UGC come too late for the students who have alreay lost their lives but, with any luck, they will help others in the future.

References:

The Times of India, The Hindu, Indlaw, IndiaJournal

Effect of Armed Rebellion on Children: Innocence Scarred

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By Sidhartha Jatar
 
Introduction

There is a stark contrast between the two worlds that exist today: one world offers comfort and hope to children in an environment where their social and developmental needs can be attended to while the other deprives communities and societies of the stability required to meet these welfare needs. Children are the future of every generation and are like saplings that require sufficient nutrition, sunlight, shelter and space to grow healthy and stay rooted. Families provide their first line of defence, giving them emotional strength and inculcating in them a basic sense of trust and bonding. Communities offer platforms for wider interaction, enabling children to develop a sense of belongingness and responsibility. Thus, it is in a salubrious climate conducive to peaceful development that children find opportunities for wholesome growth.

Armed rebellions rob a child of these essential ingredients. They upset the daily routines of life, destroy the social fabric of a community and leave behind a milieu that is unfavourable to value-based cultural and social development – the effects of this being noticeable at several levels: 1) Personal – biological and psychological 2) Family and relations 3) Social networks, schools and neighbourhoods 4) Norms and value-systems.

The deprivations of war and armed conflict result in poverty, disease, hunger, lack of clothing and poor sanitation with maximum brunt being borne by children. Children become active participants in heinous crimes as well as direct victims of violence. Through thematic references one can attempt to gauge the extent and nature of the effects of armed conflict on them.

Selective themes

Child soldiers

Armed rebels and militia forcibly recruit children to fulfil their manpower shortages for both military and non-military activities. While some child soldiers are trained to kill, others are used for support functions such as cooking and spying. Child recruitment by rebels and militia is a favourable option since these children don’t require pay and can be manipulated easily. There are some deeply disturbing stories, for example, of RUF soldiers in Sierra Leone forcing children to take part in slaughter campaigns against their own families and communities in order to sever ties. The RUF is also said to have also engaged in extreme brutalities such as cutting limbs of children to prevent government forces from using them to source diamonds. The LTTE in Sri Lankan is an example of a regularised military force which inducts children into its armed forces and provides them with weapons training.

Land mines

These are one of the worst forms of weaponry with severe long-term effects. As sitting time bombs, they pose a significant threat to children who are curious and are unable to read or understand danger signs. While mines cost a pittance to make and take little time to embed, removing minefields is a costly and time-consuming proposition. Additionally, the danger posed by landmines continues well after their intended purpose has been served. Scarcity of medical aid and resources means that few child amputees have access to prosthetics. Many more are left unattended to and succumb to their injuries.

Small-arms trade

The small-arms trade has significantly increased the ability of children to participate in acts of violence. Small arms are found in plenty in conflict zones where weapons are unaccounted for and arms dealers are operative. Children can be taught to use these weapons and reload/reassemble them. Being easy to carry and handle, they form the perfect weapon in a child’s armoury.

Sexual violence

Girls are raped and forced into prostitution apart from being used as soldiers. It is said that they serve a double purpose of performing the function of a soldier by day and offering their services for enervated combatants by night. The mental trauma and debilitating physical effects on such children are but one of the many other problems they have to face. Social stigma, early motherhood, threat of HIV/AIDS all add up to cost the girl child her adolescence.

Children as witnesses/targets

As witnesses to horrific crimes, the psychological impact on children can be destabilising to their personalities and character. The brutality and violence to which they are exposed has resulted in them being termed as “lost generations”. Where communities are sought to be wiped-out through genocide and ethnic cleansing, children become primary targets.

International Law and special protection for children during armed conflict

Since the 19th century, nations have attempted to use International Law to circumscribe the effects of armed conflicts on civilians including children. Prior to WW2, the laws of war (culminating in the Hague Convention) were the only rules that advocated maintenance of law and order during conflict and immunity of civilians including children. The devastating effects of WW2 on the civilian population, however, would provide impetus for a new legal order that expressed the resolute stand of nations to ‘humanise’ war and protect innocent persons. The Geneva Convention of 1949 and its Two Additional Protocolsthus became pillars of what has come to be called ‘International Humanitarian Law’. The Fourth Geneva Convention in particular refers to special protection of children, their need for family support and their right to adequate care, maintenance and education while Protocol I prohibits recruitment of children below the age of 15 for military purposes. In 1989, a significant step was taken through the creation of the Convention on the Rights of the Child (CRC), a legal instrument that specifies rights of children. The Convention embodies a few basic principles:

o Best interests of the child shall be of primary consideration

o No discrimination on grounds colour, sex, religion etc

o Childs inherent right to life

o Child’s right to freedom of expression

The Optional protocol to the CRC on Armed conflict then recognised the rights of all persons below 18 years of age to special protection and non-recruitment for use in hostilities by armed forces and non-State actors.

The international legal framework has also been bolstered by the Rome Statute of the International Criminal Court that recognises child recruitment as a war crime and a crime against humanity and seeks to ensure that egregious violations of human rights don’t go unpunished. The arrest and trial of Thomas Lubanga (leader of the rebel forces in Congo) is a decisive step towards strengthening the international enforcement machinery and deterring future perpetrators who might think that they can go on unwatched and unpunished. Political commitments made via the Paris Principles towards disarmament, demobilisation and reintegration of children associated with armed conflict have confirmed the resolve of several conflict-ridden nations and their governments towards protection of children’s rights.

In spite of these prolonged efforts at the international level, ground realities show a deteriorating condition for children in conflict-affected areas. Just over the last decade, some 6 million children have been wounded in armed conflict. Current estimates peg the number of child-soldiers at 300,000. Where has the international community failed and what is the way forward?

“Era of application” and strategies for execution

If the world community is going to witness any further success in its endeavours, the 21st Century will have to be an era of implementation. This is easier said than done considering that the nature of conflict has changed i.e. battles are increasingly being fought intra-state by non-state actors including disbanded militia and rebel forces. Additionally, terrorism has literally brought war into ‘one’s own backyard’ requiring the use of precision strikes and aerial bombings that cause collateral damage. Application of international law to such non-state actors and its enforcement remains a challenge.

Some other strategies that might help reduce the negative impact of armed rebellions on children:

  • Removal of small arms stockpiles
  • Cutting shipment lines for illegal trade in arms
  • Ending political/financial/military support to groups that conscript children
  • Certification systems e.g. the Kimberly certification scheme which imposes strict standards before which a diamond can be termed as conflict-free
  • Improved monitoring and reporting (as has been envisaged by the Security Council’s Working Group): This will help in gathering data, creating records, supporting future prosecutions of offenders etc.
  • Increasing awareness amongst families and communities regarding human rights and international norms
  • Convincing non-state actors to demobilise child soldiers
  • Renewal of support to anti-mine groups

Reintegration and Peacebuilding

Reintegration of children in society is an essential function of peacebuilding and the UN sends child protection officers along with peacekeeping forces to provide, amongst other things, training to its soldiers.  The task of reintegration is complex given the heterogeneity of experiences children face during armed rebellions.

How does one ensure that children aren’t painted with the same brush (especially through institutionalised mechanisms)?

Does the international community have an overly simplified understanding of the mental state and condition of children in conflict-zones? Perhaps there is a greater need for reintegration to be ‘age appropriate’, ‘gender focused’ and ‘community based’? A girl who has been a child soldier, rape victim and a child mother might need counselling on different fronts for her ‘double trauma’. A child soldier turned major will need a different approach to reintegration that someone of lesser age. There could be children who don’t require counselling at all and show signs of “spontaneous reintegration” whereas others might need spiritual healing for their sense of alienation, guilt and anger.

Just as the approach towards reintegration can be varied, the healing process itself could involve both institutional and non-institutional mechanisms. Through combined efforts involving political will, community structures and youth led initiatives children of war and conflict can hope to attain emancipation from its scourges.

Disciplining Children

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An article from the CoE Commissioner of Human Rights says that Europe is moving towards a total ban of domestic violence against children by the end of 2009. It quotes Janusz Korczak who once said, “There are many terrible things in the world, but the worst is when a child is afraid of his father, mother or teacher,” and, speaking of violence against children, it says:

“This violence may be a deliberate act of punishment or just the impulsive reaction of an irritated parent or teacher. Both cases constitute a breach of human rights. …. The invention of concepts such as “reasonable punishment” and “lawful correction” arises from the perception of children as the property of their parents. Such “rights” are based on the power of the stronger over the weaker and are upheld by means of violence and humiliation. …. Children have had to wait the longest to be given equal legal protection from deliberate assaults – a protection the rest of us take for granted. It is extraordinary that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological harm, have been singled out for less protection from assaults on their fragile bodies, minds and dignity.”

Across the pond, things seem to be a little different. In 2008, the Minnesota Supreme Court ruled for a couple who spanked their 12-year-old son thrity-six times with a paddle. It did not establish a ‘rule that the infliction of pain constitutes physical injury or abuse’.

In an even more unusual case mentioned in the American Bar Association Journal, Judge Gustavo Garza from Texas was being sued for giving Daniel Zurita the option of spanking his 14-year-old stepdaughter (which he took). The alternative was that she would be found guilty of a criminal offence and fined $500. The judge apparently keeps two paddles in his courtroom and, in this case, allegedly later chastised Zurita for failing to hit the girl hard enough.

In India, in recent years, there have been a number of criminal cases filed against teachers who have beaten their students although, as a general rule, this has been after the children have been seriously injured or have died. Such cases could also, in theory, be filed against parents who assault their children although such cases are rarely heard of.

The Right to Education Bill, 2005, does, however, prohibit the infliction of any form of corporal punishment on children by schoolteachers.

Child’s Welfare of Paramount Importance to Decide Custody

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In the case of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, a Bench of the Supreme Court comprising Justices C K Thakker and D K Jain held that the child’s welfare is the primary factor in deciding in whose custody the child should be placed.

The question in the case was whether the father or the mother should have the custody of an almost ten year old male child. The child’s parents got married on April 18, 1996. On May 28, 1998, a boy, named Satyajeet was born from the wedlock.

However, within a short time, the relationship between the spouses came under strain. The wife, who was employed as a teacher, felt that her husband had misrepresented his occupational status to her, was addicted to alcohol and smoking, had contacts with anti-social elements and had physically abused her.

After moving out of her marital home leaving her son behind, she filed a suit for divorce against respondent which was decreed ex-parte on September 12, 2002. Since no appeal was preferred by the respondent against the said decree, it attained finality.

She then moved a petition on April 5, 2003 under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.

The application was hotly contested by her ex-husband and the matter ultimately reached the Supreme Court. In its judgment the Court discussed the principles related to deciding which parent should be granted custody of a child, inter alia, saying:

“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, a three-Judge Bench of the Supreme Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:

’809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.’

The stability and security of the child is also an essential ingredient for a full development of child’s talent and personality.”

In this case although the Supreme Court decided that the father should have exclusive custody of the child, it said that visitation rights to the mother deserve to be maintained.

(This is an edited extract of the judgment.)

Punishment to be Commensurate with Offence

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In a recent case, a Bench of the Supreme Court comprising Justices Arijit Pasayat, P. Sathasivam and Mukundakam Sharma has held that capital punishment should be awarded only in cases where life imprisonment is altogether inadequate for the crime such as “when the murder is committed in an extremely brutal, grotesque, diabolical or dastardly manner so as to arouse intense and extreme indignation of the community; when the victim is an innocent child, or a helpless woman or an old or infirm person or a person vis-à-vis whom the murderer is in a dominating position.”

Continuing in the same vein, the Court said, “It is the nature and gravity of the crime, but not the criminal, which are germane to consideration of appropriate punishment in a criminal trial. … The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. … The imposition of appropriate punishment is the manner in which the court responds to society’s cry for justice against the criminal. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.”

These observations were made in a case in which the Court confirmed the death sentence of a man, Mohan Anna Chavan, who had raped and murdered two minor girls on December 13, 1999, a mere five months after his release from prison. The man had earlier been convicted for having raped minors as well — he was sentenced to two years’ imprisonment on June 12, 1989 for kidnapping and raping a minor girl and on July 28, 1989, he was sentenced to nine years’ imprisonment for raping another minor girl.

For raping and murdering the two minors, he had been sentenced to death by the Trial Court and the Bombay High Court then confirmed the sentence.

The Supreme Court said, “Any liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will result-wise be counter-productive in the long-run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system. If for the extremely heinous crime of murder, perpetrated in a very brutal manner without any provocation, the most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.”

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