By Ms. Mansi Sharma, Advocate Supreme Court Of India
Part of the three-judge bench led by Justice U.U. Lalit, which set aside the Bombay High Court’s skin-to-skin contact order earlier on Thursday, Justice S. Ravindra Bhat has noted down a concurring opinion though separate from the operative judgement by Justice Bela Trivedi.
Agreeing with Justice Trivedi, Justice Bhat said dwelt on the mischief rule while interpreting the statue that led to its birth.
“The circumstances which led to this legislation, the previous avatars that this law (Protection of Children from Sexual Offences Act 2012) underwent, the Law Commission’s reports etc., and also took note of the fact that one cannot be unmindful of the circumstances in which the previous provisions like Section 354 existed by colonial power at the time when women’s agency itself unacknowledged or had limited recognition.”
Further, Justice Bhat said women in India were traditionally, during the time of enactment of the IPC in the mid-19th century subordinated to the care of their fathers or husbands or other male relatives. They had no share in immovable property, gender equality was unheard of, and women had no right to vote. Quite naturally the dignity of women and their autonomy was not provided for.
Justice Bhat said,
“Given the history, my interpretation accorded with what Justice Trivedi has said after referring to various other legislations. I have drawn the distinction between assault under Section 351 which leads to 354 and assault which has to be with sexual intent in POCSO and also more or less concurred the inferences and reasoning with respect to what is sexual Intent which is always fact dependent.”
Justice Bhat said, “The circumstances in which touch or physical contact occurs will be determinative of whether it is motivated by sexual intent. There could be a good explanation for such “physical contact” which include the nature of the relationship between the child and the offender, the length of the contact, its purpose, also if there is a legitimate non-sexual purpose for the contact. It is also relevant to see whether it takes place under the conduct of the offender before and after the contact. In this regard it would be always useful to keep in mind that “sexual intent” is not defined but fact dependent as the explanation to Section 11 specifies.”
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