Father exposing private parts, showing child sex scenes is sexual harassment, says POCSO: Uttarakhand High Court

A father who exposes his genitals to his child and shows him sex films is an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Uttarakhand High Court recently ruled.

Single Judge Justice Ravindra Maithanihas therefore upheld an order of the Court of First Instance summoning the plaintiff-father to stand trial on the charges under Article 11((seduces a child for pornographic purposes) and 12 (sexual harassment) under the POCSO Act for allegedly sexually harassing his son.

“The child has also been investigated under Section 164 of the Code. The child has stated that his father is doing Gandi Gandi Cheeze. He would show dirty videos. Here, intent can be presumed under Section 30 of the POCSO Act. Showing private parts to a child, showing dirty films, as narrated by the child himself, prima facie constitutes an offence under Section 11 read with Section 12 of the POCSO Act,” the Court ruled.

The court also upheld the family court’s order directing him to pay ₹25,000 per month to his wife and ₹20,000 per month to his son as maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

The case against the man was filed by his wife (respondent no. 2), whom he married in December 2010. She alleged that her husband repeatedly had anal sex against her will, causing him to sustain serious injuries and bleeding for which he had to be treated at various hospitals.

Despite her injuries, the applicant continued her behaviour, which included physical abuse and forced sexual acts.

The woman also alleged that the husband subjected their child, aged 8 to 10 months, to inappropriate behavior by showing explicit content on his laptop so that the woman would give in to his demands for anal sex.

He is also said to have thrown things, urinated in the room, shown his genitals to the young child and performed oral sex in front of the child.

The man appealed to the Supreme Court against the first information report and the summons orders.

The plaintiff’s counsel argued that the act allegedly committed by the plaintiff had no sexual intent in relation to the child.

It was argued that the intention behind displaying explicit content on the laptop was not to sexually harass the child but to pressurize the child’s mother to comply with the petitioner’s demands. Therefore, it was submitted that no offence was established under the POCSO Act.

The Court noted that during questioning the child had admitted that his father had engaged in inappropriate behaviour (gandi gandi cheezein) and had shown him dirty videos.

Therefore, it refused to interfere with the writ petition regarding violations of the POCSO Act.

Another issue the court considered was whether a husband can be prosecuted under Section 377 (unnatural offences) of the Indian Penal Code (IPC) for having anal sex with his wife.

The Court relied on the judgment of the Madhya Pradesh High Court in Umang Singhar v. State case in which it was held that,

“Given the amended definition of Article 375 of the Criminal Code, there is no room for a violation of Article 377 of the Criminal Code between spouses and as such it has not been established.”

The plaintiff’s counsel referred to the Supreme Court judgment in the case of Navtej Singh Johar to argue that acts of carnal intercourse that go against the natural order and terms such as unnatural sex are not legally defined.

The applicant argued that there is no criminal offence if two consenting adults secretly engage in such acts.

It was further argued that if the wife refuses to have sexual intercourse for a prolonged period, this unilateral decision would constitute mental cruelty to the husband.

The Court agreed with the husband’s argument that having anal sex between a man and a woman with their own consent in private is not a criminal offence under Article 377 of the Criminal Code.

In the case of a man and a woman who are both adults, the consent is informed and express. Therefore, no further consent is required and no offence under Section 377 IPC is established and such act is exempted under Exception 2 of Section 375 IPC, the Court held.

Therefore, the writ petition was modified and the order was upheld only in respect of POCSO while the order was quashed for violation of Section 377 of the Penal Code.

“In view of the foregoing discussion, this Court finds that the contested summons requires intervention insofar as no violation of Article 377 of the Criminal Code is established against the revisionist,” The Court noted that the man’s request was partially granted.

The trial against the man will continue under Section 11 read with Section 12 of the POCSO Act, the court ordered.

The applicant was represented by advocate Aditya Singh.

Advocates Saurabh Pandey and Navneet Kaushik appeared on behalf of the defendants.