Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court showed concern over the emerging trend of malicious parent syndrome and said that it's unfortunate that the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) which are meant to protect the child from abuse are being misused by a protagonist of the crime.

What was the Background of this Case?

• In this case, the respondent is the complainant.
• The respondent and Smt. Shruthi Cauvery Iyer got married on 26^th April 2007 and a daughter was born from the wedlock.
• On the grounds that the relationship between the respondent and the mother of the child turned sore, it ended up in a divorce and the child's custody was to remain with the mother.
• Thereafter, the respondent filed a case before the Family Court seeking custody of the child.
• The mother filed an execution petition seeking restoration of custody of her daughter.
• Thereafter, the respondent filed a complaint against the present petitioner, who is the third husband of the mother of the child under Sections 11 & 12 of POCSO Act.
• The petitioner argued that the complainant was using the child to settle his scores. He pointed there was no whisper of any offence being alleged under the POCSO Act
• The respondent opposed the plea citing Section 29 of the POCSO Act which raises a presumption against the accused.
• Thereafter, a present petition has been filed before the High Court of Karnataka which was later allowed by the Court.

What were the Court’s Observations?

• A single judge bench of Justice M Nagaprasanna observed that an innocent child is being used by the respondent, ex-husband of the mother of the child to settle scores against the mother and the present petitioner. Further proceedings, if permitted to continue against the present petitioner, would be permitting a classic illustration of abuse of the process of law by the respondent. The innocence of the child is tampered with; her emotions are being used and abused by a warring parent. It is for this reason that when the parents begin to wrangle, who is at pain is the child.
• The Court further states that it is unfortunate that the provisions of the POCSO Act which are meant to protect the child from abuse are being misused by a protagonist of the crime in the case at hand.
• The Court showed concern over the malicious parent syndrome whereby a malicious parent engages in attempts to punish the other parent by separating the child, denying child visitation and lying to children.

What are the Relevant Legal Provisions?

POCSO Act 2012

About:

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO Amendment Act, 2019.
• Section 4 of this Act prescribes punishment for penetrative sexual assault.
• Under Section 2(1) (d) of this Act, a child is defined as any person below the age of 18 years.

Section 11 of POCSO Act:

• Section 11 of this Act deals with the Sexual harassment.
• It states that a person is said to commit sexual harassment upon a child when such person with sexual intent, —

(i) Utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii) Makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii) Shows any object to a child in any form or media for pornographic purposes; or

(iv) Repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) Threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) Entices a child for pornographic purposes or gives gratification therefor.

Section 12 of POCSO Act:

• This section deals with the punishment for sexual harassment.
• It states that whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Section 29 of POCSO Act:

• This Section deals with the presumption as to certain offences.
• It states that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.