Misuse of Provisions of the POCSO Act in Divorce Proceedings

Protection of Children from Sexual Offences Act (POCSO Act) was introduced in 2012 and is a significant step taken for the protection of children in India from sexual assault and other sexual offenses. The Act was introduced with the noble intent to curb the increasing number of sexual offenses against children who are below18 years.

Punishments under the POCSO Act, 2012 include death sentence for grave offenses. In spite of such grave provisions under the POCSO Act, frequent misuse of provisions is seen. Most frequently, such misuse is observed through the filing of false cases by people who are involved inland disputes,¹ marital disputes,² personal grudges,³ or for personal or monetary gain.⁴ Such false cases, unfortunately, result in the imprisonment of the accused resulting in the accused being humiliated in society. It is important to curb such misuse of POCSO Act by people in order to protect the rights of the children and maintain the sanctity of the statute.

The Objective - Protection of Children from Sexual Offences

India is a signatory to the United Nations Convention on the Rights of the Child. India has introduced special laws for the protection of the childhood of innocent children and their interests. Before this, special law that specifically dealt with the protection of children who are below the age of 18 years for sexual assault harassment, and child pornography were not present in India. Provisions of POCSO Act deal with these offenses more efficiently and effectively.

The POCSO Act, 2012 penalizes sexual assault on a child as along with failing to report the same if they were aware,⁵ though no specific timeline is prescribed to report the crime. Before POCSO Act the only statute in the country that dealt with the abuse against children was the Goa Children's Act, 2003. Some sections of the Indian Penal Code which are related to abuse of woman are assault or criminal force on woman with the intention to outrage her modesty,⁶ or rape.⁷

Misuse of POCSO Provision in Divorce Proceedings

Strict regulations for investigation, arrest, and penalties against offenders are included in the POCSO Act. These regulations are used as primary incentives for the misuse of provisions under POCSO. The stringent bail restrictions along with other similar strict charges are used in the divorce proceedings by the party to weaken the opposing parent’s case before the court.

Below are few noteworthy incidents of similar nature before courts in India:

In N.Chandramohan v/s The State⁸ the wife had made a complaint against the husband stating that a sexual assault was committed by him against their daughter. The false accusations were made to get full custody of the children. The elder daughter (victim) had denied all the allegations before the court.

In the case of Suhara and Other v/s Muhammad Jaleel,⁹ it was observed that there has been a significant amount of increase in the number of fictitious cases which were filed against the father under the POCSO Act. These kinds of fictitious cases must be handled with utmost care and caution by the family courts in India, especially when custody-related proceedings are ongoing in the divorce proceedings.

Children are being increasingly used as a means to harass and intimidate the other party in the justice system. The High Court of Delhi has expressed disapproval for the same in the landmark judgment of Suhara and Others v/s Mohammed Jaleel¹⁰ observing that “this tendency is growing and making serious allegations in order to win in the matrimonial battles.”

A similar instance took place before the Kerala High Court when a wife accused her husband of sexually assaulting their son, in order to restrict and prevent him from meeting and having any kind of interaction with the child. The husband and wife were in the process of dissolution of their marriage in the family court. The wife alleged that the husband had shown nude photographs to their son (victim) and touched his private parts during the court-allowed interactions. Upon revisiting the history of the family court proceedings between the parties, it was found that there were no such issues reported in the past during the court-ordered interactions between the child and the father. No such observation was also made by the counselor, which was appointed by the family court. Justice Ziyad Rahman while granting bail to the accused (father) had highlighted the significance of maintaining caution in these kinds of cases.¹¹

The Kerala High Court, while reiterating observations made in Suhara and Ors v/s Muhammed Jaleel¹² had observed, “the growing tendency in the recent years to foist false crimes against the biological father alleging sexual abuse of own child misusing the provisions of the POCSO Act when the serious fight for custody of ward is pending resolution before the Family Courts."

A member of the Kerala State Commission for the Protection of Child Rights has also gone on record saying that such false POCSO cases are unfortunately, very common in divorce and separation proceedings involving custody-related issues.¹³

Impact of the Misuse of POCSO Provision in Divorce Proceedings

A balance has to be achieved between protection of children from the abuse and exploitation of POCSO provisions. The interests of both the accused and the child involved are to be examined carefully. Fictitious accusations made under the POCSO Act can cause distress and trauma to the child, which can affect their emotional and mental well-being and development. ¹⁴Due to these false accusations, the child can also be potentially deprived of a healthy relationship with their parents. These accusations may result in diverting the attention away from the welfare of the child and their need.

The parent who is falsely accused may face detrimental effects on their career, reputation in society, and their personal life, no matter if their innocence is proven at a later stage. ¹⁵These instances solely for personal benefit can erode the trust in the justice system and wear away the law's intent of protecting the actual victims.

Conclusion

The main intention of the POCSO Act was to save children below 18 years of age from sexual abuse and other sexually explicit crimes. However, it is seen that the POCSO Act is occasionally taken advantage of by using its provisions in child custody cases and divorce proceedings. Many fake allegations are often filed by either of the parties under the POCSO Act. The people in the society need to understand the gravity of the POCSO allegations. In order to prevent such instances more harsh penalties should be implemented. Examinations should be carried out more strictly in divorce cases where charges of POCSO are filed. False charges can also lead to unnecessary delays in the conclusion of the cases under the POCSO Act.

Article is authored by Shreya Patel, B.A.LL.B (Hons)