“CHILD ABUSE IN INDIA: THE LEGAL AND SOCIAL PROSPECTIVE: CRITICAL

ANALYSIS”

DISSERTATION SUBMITTED TO

UNIVERSITYLAWCOLLEGE,UTKALUNIVERSITY

INSUBMISSIONFORPARTIALFULFILMENTOFTHEREQUIREMENTS FOR
THE DEGREE OF 5 YEARS B.A. LL. B (HONS.) COURSE

UNIVERSITYLAWCOLLEGE,UTKALUNIVERSITY, VANI

VIHAR,

BHUBANESWAR,ODISHA761004

SUBMITTEDBY: SUBMITTEDTO:

SHUBHASHREE PRADHAN MR. PRACHILALIT MISHRA

ROLLNO.90200UT21052 (ASSISTANTPROFESSOR
(GUESTFACULTY),
UNIVERSITY LAW COLLGE)

1
UTKAL UNIVERSITY NAME OF THE EXAMINATION:

VANIVIHAR,BHUBANESWAR 9TH SEMESTER,5 YEAR

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DISSERTATION 50

SIGNATUREOFTHEEXAMINER

2
 DECLARATION

I, Shubhashree Pradhan ,a student of B.A L.L.B (Hons.) final year of University Law
College, Utkal University ,bearing roll number -90200UT21052,do hereby declare
that this dissertation paper is an original word of mine and is a result of my own
intellectual efforts.

I have quoted titles of all original sources i.e original documents as this is a doctrinal
research and the name of the authors as well as excerpts that has helped me in writing
this dissertation paper have been placed at appropriate places and I have not infringed
copyrights of any other author.

The finding and conclusions drawn in this dissertation paper are based on relevant
information collected and summarized from my research during the period of my
study on the topic of , “CHILD ABUSE IN INDIA :THE ROLE OF

LEGAL AND SOCIAL PERSPECTIVE : CRITICAL ANALYSIS”.

Date: S/d

Place: Bhubaneswar SHUBHASHREE PRADHAN

 CERTIFICATE

This is to certify the dissertation entitled ““CHILD ABUSE IN INDIA : THE

ROLE OF LEGAL AND SOCIAL PERSPECTIVE : CRITICAL
ANALYSIS”. Which is being submitted by SHUBHASHREE PRADHAN for the
award of the degree of B.A.L.L.B (Hons.) is independent and an original research
work carried out by her.

The dissertation is worthy of consideration for award of B.A.L.L.B (Hons.) degree

University Law College, University.

Shubhashree Pradhan worked under my guidance and supervision to fulfill all

requirements for the submission of this dissertation .The conduct of research scholar
remained excellent during the period of research.

Prachi Lalit Mishra

(FACULTY OF LAW, UNIVERSITY LAW COLLEGE,

UTKAL UNIVERISTY)
 TABLE OF CONTENT

CHAPTER 1: INTRODUCTION………………………………….

1.1 GENERAL INTRODUCTION

1.2 OBJECTIVE OF THE STUDY

1.3 STATEMENT OF PROBLEM

1.4 SIGNIFICANCE OF STUDY

1.5 REVIEW OF LITERATURE

1.6 RESEARCH QUESTION

1.7 RESEARCH METHODOLOGY

1.8 SCOPE AND LIMITATION OF THE STUDY

CHAPTER 2: HISTORICAL DEVELOPMENT…………………….

2.1 MEANING, ORIGIN OF CHILD ABUSE

2.2 CHILD SEXUAL ABUSE IN INDIA

2.3 TYPES OF CHILD ABUSE

2.4 FACTORS RESPONSIBLE FOR CHILD ABUSE

2.5 CAUSES OF CHILD ABUSE

CHAPTER 3: PROTECTION OF CHILD ABUSE IN LEGAL FIELD……

3.1 CONSTITUTIONAL PROVISION

3.2 BHARATIYA NYAYA SAHITA, 2023

3.3 PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

CHAPTER4: JUDICIARY PROCESS IN CHILD PROTECTION…………….

4.1 PROTECTION OF CHILDREN ON THE BASIS OF FUNDAMENTAL RIGHT

4.2 PROTECTION OF CHILD LABOUR

4.3 PROTECTION OF CHILDREN AGAINST EXPLOITATION

4.4 RIGHT TO EDUCATION

4.5 PROTECTRION AGAINST CHILD AGAINST SEXUAL ABUSE

CHAPTER 5: CONCLUSION AND SUGGESTION……………………

BIBLIOGRAPHY…………………………………………………………………
 ACKNOWLEDGMENT

At the very outset, I would like to express my sincerest and heartfelt gratitude to Prof.
(Dr.) Gyanendra Kumar Sahu , Ms Prachi Lalit Mishra for their constant guidance,
co-operation and encouragement in the process of completing my research, though
this single line of acknowledgement would never suffice their valuable guidance and
scholarly intellect that they showered throughout the process.

Their legal and social acumen, well as their patient demeanor were essential for the
completion of my research and has taught me numerous valuable lessons and insights
on the making of academic research in general. I am highly obliged for their valuable
advices, directions and kind supervision, I would thank god for providing me with the
intellect and the heart that believed it to be good enough to choose and research on the
topic of its choice.

I would also like to thank my peers and the administrative staff of University Law
University who helped me search and find relevant materials required for my research
even with limited resources and constraint of time and surroundings. I would also take
this opportunity to thank my family for their constant support and eternal patience to
have been by side as I indulged in eccentricities during my research.

Shubhashree Pradhan
 LIST OF ABBREVIATION

AIR………………………………………...All India Reporter

BNS………………………………………..Bharatiya Nyaya Sahita,2023

CAPTA…………………………………….Child Abuse Prevention and treatment act

CIF…………………………………………Childline India Foundation

CrLJ………………………………………...Criminal law journal

CSA………………………………………...Child Sexual Abuse

CRY………………………………………...Child Rights and you

HC…………………………………………..High Court

ICC………………………………………….International Criminal Court

ICCPR……………………………………..International Covenant on civil and

political Right

POCSO…………………………………….Protection of children from Sexual

Offences act,2012

PITA………………………………………The Immoral Traffic (Prevention ) Act,

1956

MWCD……………………………………Ministry of Women and Child

Development

NCRB……………………………………..National Crime Record Bureau

SC…………………………………………Supreme Court

SCC………………………………………..Supreme Court Cases

WHO……………………………………….World Health Organization

 LIST OF CASE

Daryao v. state of UP AIR 1961 SC 1457

Mohini Jain v. state of Karnataka (1992) 3 SCC 666.

Peoples union for democratic rights v. Union of India AIR 1982 SC 1473

Bachpan Bachao Andolan v. Union of India AIR 2011 SC 3361

Labourers, Salal Hydro Project v. State of Jammu and Kashmir AIR 1984 SC 177

M. C. Mehta v. State of Tamil Nadu AIR 1997 SC 699

Childline India Foundation vs. Alan John Waters and Ors (2011) 6 SCC 261

Re Exploitation of children in orphanage in State of T.N. v. Union of India (2017) 7

SCC 578
Mohini Jain vs State of Karnataka (1992) 3 SCC 666

Unni Krishnan v. State of A.P (1993) 1 SCC 645

Avinash Mehrotra v. Union of India (2009) 6 SCC 398

Prerana v. State of Maharashtra and others (2003) 1 ILD 438 (Bom)

Vishal jeet v. Union of India AIR 1990 SC 1412.

Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220

Tukaram and Anar. v. state of Maharashtra AIR 1979 SC 185 :(1979)2 SCC 143

State of Gujarat v. Lavaram Ram Chandra 1980 Cri LR 187 (Guj.)

 CHAPTER-1

INTRODUCTION-
There is clear evidence that child abuse is a global problem. It occurs in a variety of forms
and is deeply rooted in cultural, economic and social practices. Before defining "child abuse"
its crucial to get informed about "children's rights" in the first place. Child sexual abuse is a
form of child abuse in which an adult or older adolescent uses a child for sexual activity.
Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities
(regardless of the outcome), indecent exposure (of the genitals, female nipples, etc.) to a child
with intent to gratify their own sexual desires or to intimidate or groom the child, physical
sexual contact with a child, or using a child to produce child pornography.

Child sexual abuse can occur in a variety of places, including home, school, or work (in
places where child labour is common).The effects of child sexual abuse can include
depression, post-traumatic stress disorder, anxiety, complex post-traumatic stress disorder,
propensity to further victimization in adulthood, and physical injury to the child, among other
problems. Sexual abuse by a family member is a form of incest and can result in more serious
and long-term psychological trauma, especially in the case of parental incest. Child abuse is
when a parent or caregiver, whether through action or failing to act, causes injury, death,
emotional harm or risk of serious harm to a child. There are many forms of child
maltreatment, including neglect, physical abuse, sexual abuse, exploitation, and emotional
abuse. These are major categories of child abuse:

OBJECTIVE OF THE STUDY-

1. Briefly study the legal framework in India the rights and protection of children's in
India. The state to provide services to children, both before and after birth and the
growth of physical, mental and social development.
2. To examine the survival, health and nutrition of child in existing laws and
mechanisms dealing with child sexual abuse.
3. Two examine the equal right to learning, knowledge and education of children.
4. Two examine the protection and participation of children.
STATEMENT OF PROBLEM-

1. Lack of social and legal awareness: the lack of awareness among the children because of
the existing child protection laws and reporting mechanism. Lack of the awareness of the
laws which are basically provides the how to complain the file, leading to underreporting of
abuse.

2. Need for protection of child in rural area. The most of rural area need to the protection of
child labour. More of the cases the percentage of child labour is more in the rural area. The
study about the children and their family are affected emotionally, legally and socially.

3. Proper implementation of the laws: the laws are apply on every field like the parliament
pass the Laws and amendment the law but the implementation level is so less and not good.

4. Supporting the victim which are not mentally stable : In an India a child victim which are
the so precious need the proper care and nourishment during the growth. But in the situation
they are not giving proper care and nourishment because of this child abuse, child labour so
many reason they are not mentally stable.

SIGNIFICANCE OF STUDY-

1. Bridging the gap between law and practice: the difference between the law and actually
happens in real life in [Link] identifies obstacle that prevent victims from getting justice
suggest from poor investigation, lack of trained officials , and social pressure.

2. Promoting awareness and sensitization: the promote awareness among parents, teachers,
and community about child rights and important of early reporting. It also stress the need to
sensitize police officer, social workers, and judicial authorities in handling such sensitive
cases.

3. Understanding the ground reality of child sexual abuse: in society actual condition of
children who are victims of child sexual abuse in India then are very sensitive topic because
of the real cases and data ,it shows how widespread the problem is , how children and their
families are affected emotionally socially and legally.
REVIEW OF LITERATURE-

According to the WHO, Child Sexual Abuse is such a forceful act which is executed on child
without the consent of the child since the children are unable to give informed consent for
such acts. It violates the law as well the social norms of society.1

A study conducted by RAHI in 1997 revealed that 76% of the victims were sexually abused
when they were child, among whom 71% were abused by their relatives or near and dear
ones.2

According to the NCRB, a total of 1,77,335 cases of crimes against children were reported in
2023, marking a significant jump from the 18,700 cases documented in 2005. 3

RESEARCH QUESTIONS-

1. what are the law provide the child protection?

2. What are the problems facing the child victim when they report abuse?

3. Are the courts and child protection community helping victims gets justice and support?

4. How do family and society affect the reporting child sexual abuse?

RESEARCH METHODOLOGY-

The researcher has proposed to use doctrinal method of research. The present research study
is primarily based upon the doctrinal and analytical method. The topic work has mainly
focused problems related to child abuse in India in relation to POCSO Act,2012. This topic
referred existing the literature related to child abuse with respect to present problem and
reviewed the same from various sources.

1
Report on child abuse: WHO(1996)
2
Study by RAHI (1997)
3
Indian Expess,01-10-2025
SCOPE AND LIMITATION –

Scope:

[Link] institutional committees are reformed.

Some committee are like child welfare committee (CWCs), district child protection
units(DCPUS) and National commission for protection of child rights(NCPCR).

2. Legal framework analysis: the law which are given under the child rights such key status
are protection of children from sexual offences ( POCSO) Act,2012, the juvenile justice (care
and protection of children)act,[Link] relevant provisions under the BNS,BNSS to
understand the rights of children.

3. Legal and institutional framework in child sexual abuse: in the child sexual abuse which
are the main protection of child in society. Day to day child sexual abuse is more to the given
data. The girls child are more affected this situation. More legal and institutional background
are clearly the child abuse .

LIMITATION:

Cultural sensitivity and bias : cultural taboos around sexual abuse and family honor can
introduce bias in responses to discuss. The issues openly during data collection

Limited geographic representations: finding from selected States or districts cannot be

generalised to the entire country because socio cultural and institutional contexts vary widely
across India

Dependence on secondary sources: a significant portion of the analysis relies on secondary

data such as reports, legal judgements , and publications, which might not fully capture real
time ground conditions.
 CHAPTER-2

CHILD ABUSE MEANING, CONCEPT AND HISTORICAL

DEVELOPMENT:

INTRODUCTION: Children are innocent and helpless guys and therefore need proper care
and nourishment during the growing years so that they become useful members of the
society. They are the architects of the future of a nation and therefore they should be
protected from all kinds of abuse and given opportunities for their all round development.
Simply giving birth to a child without having proper means and his neglect amounts to
implied offence.

Despite hectic planning, welfare measures, legislative safeguards and administrative actions,
a large number of Indian children continue to remain in distress and turmoil. Neglect by the
parents, batter by the care taker and abuse/harassment by the employers in the work places
are very common to them. Though, this problem is increasing, it is yet to be recognised as a
serious problem in India, because child abuse has not become an issue of concern for our
psychiatrists, psychologists, pediatricians, lawyers, social scientists, public in general as well
as the government. The urgency of studying the problem scientifically and identifying the
abuse and helping the families where abuse occurs has yet to be realized.

Child abuse is a state of emotional, physical, economic and sexual maltreatment meted out to
a person below the age of eighteen and is a globally prevalent phenomenon. However, in
India, as aforesaid, there has been no understanding of the extent, magnitude and trends of the
problem. The growing complexities of life and the dramatic changes brought about by socio-
economic transitions in India have played a major role in increasing the vulnerability of
children to various and newer forms of abuse.

Child abuse is a clear violation of the basic human rights of a child and is an outcome of a set
of inter-related familial, social, psychological and economic factors. Logically speaking,
denial of rights to the children in any form, entails child abuse and exploitation in some form.
However, the term 'child abuse' has acquired a particular connotation and it has been defined
variously depending on the extent and type of mistreatment metted out to the children.
DEFINITION OF CHILD ABUSE:

Till today, there is no unanimous definition of child abuse, because social scientists, lawyers,
physicians, social workers, police etc., all differ from each other with regard to what
constitutes child abuse. It also varies according to social class, cultural and sub-cultural
backgrounds.

According to Gardner and Gray, 1 child abuse means, "children who have received serious
physical injury caused willfully rather than by accident." Kempe and Kempe have defined it
as "a clinical condition having to do with those who have been deliberately injured by a
physical assault."2 This definition was further modified by Parke and Collmer who state that,
"child abuse refers to any child who receives non-accidental physical injury or a result of acts
and omissions on the part of his parents or guardians that violate the community standards
concerning the treatment of children.3 Burgess4 is of the opinion that, "Child abuse refers to
any child who receives physical and psychological injury as a result of acts and Omissions on
the part of his parents or guardians or employers”.

TYPES AND INDICATORS OF CHILD ABUSE

Child abuse is usually classified into three categories

(1) Physical abuse,

(2) Sexual abuse, and

(3) Emotional abuse

1
See, Gardner and Gray in Feldman's Criminal Behaviour, 1982, Volume II, p. 5
2
. Kempe, R. S. and Kempe, C. H, : Child Abuse, 1978.
3
. Parke, R and Collmer, C: "child abuse: An interdisciplinary Analysis"; Review of Child Development
research ,1975,Vol.5,pp.509-589.

4
Burgess,R.L.:”Child Abuse :A social Interaction Analysis”;Advances in Clinical Child
Psychology,1979,Vol.2,pp.141-172.
(1) Physical Abuse

Physical abuse of a child includes "any non-accidental physical attack or physical injury,
including minimal as well as fatal injury, inflicted upon the child by the child's caretakers."5

According to David Gill, 6 "the term 'non-accidental', as used in the definition, refers to
deliberate behaviour of persons involved in physical attacking or injuring a child. The use of
the term physical attack' in the definition is because physically abusive behaviour does not
always result in clearly, observable physical injury, and the term 'care taker' may include a
parent, elder brother or sister, a relative, teacher or someone else not being the relative of the
child, is at least temporarily taking care of the child."

Sloan Irving7 says that, the physical injury may include burning, beating, branding, punching
and so on. The important physical indicators of physical abuse in the school-age child are:

"(a) Bruises on the face, legs, hands, stomach, back, and thighs. They may be of different
colours and in different stages of healing. They may be in clusters or reflective of the article
used to inflict them.

(b) Burns-cigarette, beedi, charcol burns on feet, hands, palms, neck, face, back and legs. The
burns could even be dry which show a clearly defined mark left by the instrument used to
inflict them.

(c) Fractures of bones, nose, and facial structure. They may be multiple or spiral and in
various stages of healing. They may even be in the forms of swollen or tender limbs.

(d) Lacerations and abrasions to the mouth, lips, gums or eyes. They may be on the back of
the arms and legs.

(e) Abdominal injuries-swelling of the abdomen or constant vomiting.

(f) Human bite marks.”8

5
Gil, David: "Incidence of Child Abuse and Demographic Characteristics of Persons Involved"; published in
the book 'the Battered Child', edited by Helfer and Kempe, 1968, p. 20.

6
Gil, David: "Incidence of Child Abuse and Demographic Characteristics of Persons Involved"; published in
the book The Battered Child', edited by Helfer and Kempe, 1968, p. 20.

7
Sloan, Irving J: Child Abuse: Governing Law and Legislation, 1983, pp. 2-3
The behavioural indicators of physical abuse are:

“(a) the abused child is wary of physical contact with adults. He often avoids it and some-
times even shrinks at the touch or approach of an adult.

(b) He/she becomes apprehensive when other children cry.

(c) He/she demonstrates extremes in behaviour-extreme aggressiveness or extreme

withdrawal.

(d) He/she states that he/she is afraid to go home or cries when it is time to go home.

(e) He/she seems frightened of the parents/caretakers.

(f) He/she reports injury by a parent/caretaker."9

(2) Sexual Abuse

Child sexual abuse has been defined as "the involvement of dependent, developmentally
immature children in sexual activities they do not fully comprehend; to which they are unable
to give informed consent." 10Simply speaking, it is an interaction between a child and an adult
in which the child is being used for the sexual stimulation of the perpetrator or another
person. Besides actual sex action, sexual abuse also involves some other activities like
inappropriate touching, exposures to indecency, forcing to participate in sexually stimulating
acts etc. However, there are some physical indicators of sexual abuse. These are:

"(a) difficulty in walking or sitting.

(b) torn,

(c) stained or bloody underclothes,

(d) complaints of pain or itching,

(e) bruises or bleeding,

8
Sloan, Irving J: Child Abuse: Governing Law and Legislation; 1983, pp. 2-3.

9
Sloan, Irving I: Child Abuse: Governing Law and Legislation; 1983, p. 4.
10
. Mather, Peter (Ed): Child Abuse: The Educational Perspectие: 1984, p. 127.
(f) Venereal disease, and

(g) pregnancy in early adolescence" 11 etc.

Like physical abuse, there are also behavioural indicators of sexual abuse. The sexually
abused child may appear withdrawn or retarded, may have poor peer relationships, may be
unwilling to participate in activities, my indulge in delinquent behaviour, may run away, or
may display bizarre or unusual sexual knowledge.12

In most of the cases of child sexual abuse, neither all the cases are reported to the police, nor
the victims or the parents of the victims give information even when they identify the
perpetrator of this crime.

Sexual abuse may be intra-familial sexual abuse or exo-familial sexual abuse. In intra-
familial sexual abuse, the child is abused by an adult member of the same household. The
term 'incest' is often used as a synonym for this type of abuse. So far as the second category is
concerned, it may be of employment related sexual abuse or acquaintance sexual abuse. In
employment related sexual abuse, the focus is on the relationship of authority and the trust
between the abuser and the child and not the biological tie, and the acquaintance sexual abuse
refers to abuse by persons like teachers, neighbours and so forth13. In all the cases, secrecy is
often arranged to be maintained for a long period because children are easily silenced by
threats or some promises14.

A study shows that:

"(a) girl children are sexually abused more than the boys during childhood.

(b) There is a high relationship between child sexual abuse and lower socio-economic status
of the family.

11
. Sloan, Irving): Cluld Amine Governing Law and Legislation; 1983, p. 6

12
Sloan, Irving): Child Abuse: Governing Late and Legislation, 1983, p. 6

13
Kewalramani, G. 5: Child Abuse; 1992, p. 74.

14
Kewalramanı, G. S.: Child Abuse, 1992, p. 74.
(c) A significant proportion of child sexual abuse occurs out side the family and persons
having blood relationships, including kins, constitute a small category of perpetrators."15

(3) Emotional abuse

Emotional abuse is the neglect or maltreatment of children. Neglect' is difficult to define

exactly, since it may involve disregard of physical, emotional, moral or social needs of the
children. According to Kratcoski and Kratcoski, physical neglect' means the failure to provide
the essentials for normal life, such as food, clothing, shelter, care and supervision, and
protection from assault. 'Emotional neglect' includes both the lack of expressed love and
affection and the deliberate, withholding of contact and approval, where as 'moral neglect'
includes exposure to situations (alcoholism, obscenity, illicit sex relations) that present a
pattern of moral conduct of variance with the norms of society. 'Social neglect' means failure
to train or discipline a child. " 16

Thus, 'emotional neglect' or maltreatment may be described as "negligent treatment of a child

under the specific age prescribed for the children by the given society (in India, it being
eighteen for girls and sixteen for boys) by a person who is responsible for the child's
upbringing, care and welfare under circumstances which indicate that the child's health or
welfare is harmed or threatened thereby.”17This definition characterises acts of 'omission' and
not commission' as abuse.

Emotional maltreatment of the child includes blaming, belittling, rejecting, constantly

treating siblings unequally, and persistent lack of concern by the parent/care taker for the
child's welfare.18 Emotional maltreatment is rarely manifest in physical signs. A few physical
indicators of emotional maltreatment are speech disorders, lag in physical development and
failure-to-thrive syndrome.19 More often, it is observed through behavioural indicators which
may or may not be immediately apparent.

15
Kewalramani,G.S.:Child Abuse;1992,p. 77.
16
Kratcoski, P. C. and Kratcoski, L. D. Juvenile Delinquency, 1979, p. 120.
17
Kewalramani, G. 5. Child Abuse; 1992, pp. 87-88.

18
Kewalramani, G. 5. Child Abuse; 1992, p. 88

19
Sloan, Irving): Child Abuse: Governing Law and Legislation; 1983, p. 7.
CAUSES OF CHILD ABUSE

There are various causes of child abuse. So far as the Physical abuse is concerned, psycho-
pathology of the individual perpetrators; psycho-social pathology of family interaction and
acute stress (situational stress) are regarded as main causes. The situational stresses further
pointed out four dominant causes of a child's physical abuse, i.e.

(a) Relations between spouses,

(b) Relations between parents and children,

(c) Structural stresses, and

(d) Child produced stresses.

Though the role of the personality traits of the abusers can not be ignored, family
environment and stress-ridden family situations are more crucial factors in child battering.

On the other hand, adjustment problems of the perpetrators, family disorganisation, victims
characteristics and the psychological disorders of the abuser are considered as root causes of
child sexual abuse. Categorically, loneliness of young girls make them more vulnerable to the
overtures of the perpetrators.

Similarly, four important causes of emotional abuse can be identified. These are:-

(a) poverty,

(b) 'deficient' parental control and non-cordial relations within family.

(c) maltreatment faced by parents in their own childhood or inter-generational transmission of

child maltreatment, and

(d) alcoholism of parents.

EFFECTS OF ABUSE ON CHILDREN

Regarding the effects of abuse on children, Bolton and Bolton20 have identified eight possible
effects of abuse on victims, namely, self devaluation, dependency, mistrust, revictimisation,

20
Bolton, F. G. and Bolton, S. R.: Working with Violent Families; 1987, pp. 93-113.
withdrawal/isolation from people, emotional trauma, deviant behaviour and inter personal
[Link], Kewalramani's study on child abuse lays down the effect of abuse on
children in five significant areas. These are self esteem, dependency, deviant behaviour,
social and inter-personal problems, and re victimization.

Here children have no choice but to accept the perpetrator's abuse. The person who maltreats
them is their own parent, so they can not run away from him. In other cases also, they have to
tolerate their caretakers' and employers' hostility because of their poverty and their
dependence on them. Even this dependency of the children is also shifted from parents/care-
takers to teachers for the gratification of all his/her needs, i.e. gratification of physical needs
like food, clothes and medicare, emotional and social support, and need of working some
where to earn money. Therefore a significant number of victimized children continue to
depend on their parents/care takers than others, despite the abuse. At the same time, child
abuse causes deviance amongst the victims which may vary with regard to its magnitude and
type.

Abuse also has a great effect on a child's conformity to socio-cultural expectations and a large
number of victimized children are compelled to indulge in activities that violates the social
norms or which are labelled as 'deviance'. Child abuse also results in poor communication
and coping ability, failure in developing intimacy and social relationships, mistrust, isolation,
and withdrawal from inter-actional settings. Thus the victims of child abuse always develop
certain types of social and inter-personal problems. The most important effect of child abuse
is re-victimization, i.e. the child once abused will essentially be abused time and again.
 CHAPTER-3

PROTECTION OF CHILD ABUSE IN LEGAL FIELD

The future of a country depends on the welfare and well being of its children. The supremely
important National assets. That is why the nation is under a due to protect and develop these
assets to their fullest extend. India, 'being a welfare state has also enacted several provisions
in this regard so that it's children could be brought up in such an atmosphere which is
conducive to their physical, mental and moral development. Every child has a right to
nutrition, recreation, health , education like others and he is also to be protected from all sorts
of neglect and exploitation. Therefore status of a child in a society is very important.
Accordingly, constitution of India and other legislations in accordance with the international
norms and regulations provide some specific provisions for the protection, welfare and
overall development of children so that they can avail their minimum basic human rights and
be protectes from exploitation and abuse.

3.1 constitutional provision :

The future of a country depends on the welfare and well being of its children. The supremely
important National assets. That is why the nation is under a due to protect and develop these
assets to their fullest extend. India, 'being a welfare state has also enacted several provisions
in this regard so that it's children could be brought up in such an atmosphere which is
conducive to their physical, mental and moral development. Every child has a right to
nutrition, recreation, health, education like others and he is also to be protected from all sorts
of neglect and exploitation. Therefore status of a child in a society is very important.
Accordingly, constitution of India and other legislations in accordance with the international
norms and regulations provide some specific provisions for the protection, welfare and
overall development of children so that they can avail their minimum basic human rights and
be protectes from exploitation and abuse.

3.1.1 Article 14

People of india, including children also the part of equal protection of laws in the
constitution. The fundamental right are also provided the child which is dignity and integrity
as a child in not exploited that clearly that. Children are more precious to chance to treated
equal treatment.
While 'equality before the law' is a somewhat negative concept implying the absence of any
special privilege in favour of individuals and the equal subject of all classes to the ordinary
law. "Equal protection of the law" is a more positive concept implying equality of treatment
in equal circumstances. 1 However, one dominant idea common to both the expressions is that
of equal justice. 2

Equality before law- The concept of equality does not mean absolute equality among human
beings which is physically not possible to achieve. It is a concept implying absence of any
special privilege by reason of birth. creed or the like in favour of any individual, and also the
equal subject of all individuals and classes to the ordinary law of the land. The right to sue
and be sued, to prosecute and be prosecuted for the same kind of action should be same for
all citizens of full age and understanding without distinctions of race, religion, wealth, social
status or political influence", 3

Equal protection of law- It only means that all persons similarly circumstanced shall be
treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law
should be applied to all in the same situation, and there should be no discrimination between
one person and another.4Thus, the rule is that the like should be treated alike and not that
unlike should be treated alike. 5The rule of law imposes a duty upon the State to take special
measure to prevent and punish brutality by police methodology. 6 The Rule of Law embodied
in Article 14 is the "basic feature" of the Indian Constitution and hence it cannot be destroyed
even by an amendment of the Constitution under Article 368 of the Constitution.7

3.1.2 Article 15 : Special provision for children

Article 15 of the india constitution prohibits discrimination .In this article children and
women require special treatment on account of their very nature, as per Article 15(3).It is
very clear from Article 15(3) that “Special Provision “ does not mean unequal treatment but it
is established for the well being and development of the children in india.

1
Dicey –Law of the constitution, p.49(10th ed)
2
Sheo Shanker v. State of M.P,AIR 1951
3
Jennings –Law of the Constitution,p-49(3rd ed.)
4
State of west Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
5
Dr. V.N Shukla –Constitution of india,p.27(5th ed.)
6
Raghubir Single v. state of Haryana, AIR 1980 SC 1087.
7
Indira Nehru Gandhi v .Raj Narain ,AIR 1975 SC 2299.
3.1.3 ARTICLE -21

"No person shall be deprived of his life or personal liberty except according to procedure
established by law".

Maneka Gandhi's decision, Article 21 protects the right to life and personal liberty not only
from the Executive action but from the Legislative action also. A person can be deprived of
his life and personal liberty if two conditions are complied with, first, there must be a law and
secondly, there must be a procedure prescribed by that law, provided that the procedure is
just, fair and reasonable. 8

The right guaranteed in Article 21 is available to 'citizens' as well as 'non-citizens'.

Several right mandating protection of children, Such rights are :

1. Right to food –
P.U.C.L. v. Union of India9, the Supreme Court has held-The people who are
starving because of their inability to purchase foodgrains have right to get food under
Art. 21 and, therefore, they ought to be provided the same free of cost by the States
out of surplus stock lying with the States particularly when it is unused and rotting
Under such a situation, foodgrains be provided to all those who are aged, infirm,
disabled, destitute women ,destitute men, pregnant and lactating women and destitute
children.

2. Right to education –

Mohini jain v. State of Karnataka10, The Supreme Court held-The right to education
at all level is a fundamental right of citizen under Article 21 of the Constitution and charging
capitation fee for admission to educational institutions is illegal and amounts to denial of
citizen's right to education The right to education flows directly from right to life. The right to
life under Article 21 and the dignity of an individual cannot be assured unless it is
accompanied by the right to education.
8
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
9
2000(5)SCALE 30

10
(1992)3 SCC 666
Unni Krishan v. State of A.P11 , held the right to education a fundamental right under
Article 21 of the Constitution. But as regards its content, the Court partly overruled the
Mohini Jain's case and held- The right to free education is available only to children until
they complete the age of 14 years but after that the obligation of the State to provide
education is subject to the limits of its economic capacity and development.

3.1.3 ARTICLE 21-A

It is well-known that education is a basic human right. For the success of democratic system
of government, education is one of the basic elements. An educated citizen has to choose the
representatives who form the government. Education gives a person human dignity who
develops himself as well as contributes to the development of his country.

The Constitution (86th Amendment) Act, 2002 added a new Article 21A. It provides "The
State shall provide free and compulsory education to all children of the age of 6 to 14 years in
such manner as the State may, by law, determine". The Parliament to give effect to the 86th
Constitution Amendment Act, 2002, passed the Right of Children to Compulsory Education
Act, 2009.

The right to education is enshrined in international law by virtue of Article 26 of the UDHR
and Article 13 and 14 ICESCR. These articles mandate education for all the children
irrespective of their religion, caste, gender or financial status. Article 21-A ensures that no
children are deprived of their basic education and everyone is provided with elementary
education.

3.1.4 Article 23

Article 23 of constitution said that prohibition of “traffic in human being and forced labor.

Traffic in human beings' means selling and buying men and women like goods and includes
immoral traffic in women and children for immoral" or other purposes12. Though slavery is
not expressly mentioned in Article 23, it is included in the expression 'traffic in human
being. 13

11
(1993) 1 SCC 645
12
Raj Bahaduar v. Legal Remembrancer, AIR 1953 Cal.522
13
Dubar Goala v. Union of India ,AIR 1952 Cal. 496
Article 23 protects the individual not only against the State but also private citizens. It
imposes a positive obligation on the State to take steps to abolish evils of "traffic in human
beings" and begar and other similar forms of forced labour wherever they are found. this
Article is available to both citizens as well as non-citizens.

Peoples union for democratic rights v. union of india14 The scope of Article 23 is wide and
unlimited and strikes at "traffic in human beings" and "begar and other forms of forced
labour" wherever they are found. It is not merely "begar" which is prohibited by Article 23
but also all other forms of forced labour "Begar is a form of forced labour under which a
person is compelled to work without receiving any remuneration.

Bandhua Mukti Morcha v. Union of India15, the Court observed that, "The right to live
with human dignity enshrined in Article 21 derives its life breath from the Directive
Principles of State Policy and particularly clauses (e) and (f) of Article 39, Article 41 and 42
and at the least, therefore, it must include protection of the health and strength of workers,
men and women, and of the tender age of children against abuse, opportunities and facilities
for children to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions of work and maternity relief.

3.1.5 Article 24

Article 24 of the Constitution prohibits employment of children below 14 years of age in

factories and hazardous employment. This provision is certainly in the interest of public
health and safety of life of children. Children are assets of the nation.

M. C. Mehta v. State of Tamil Nadu16, the Supreme Court in a PIL held-The children below
the age of 14 years cannot be employed in any hazardous industry, mines or other works.

The Court directed setting up of Child Labour Rehabilitation Welfare Fund and asked the
offending employer to pay for each child a compensation of Rs. 20,000 to be deposited in the
Fund and suggested a number of measures to rehabilitate them in the phased manner. The
liability of of the th employer would not cease even if he would desire to disengage the child
presently employed and asked the government to ensure that an adult members of the child's
family get a job in a factory or anywhere in lieu of the child.

14
AIR 1982 SC 1943.
15
AIR 1984 SC 802
16
AIR 1997 SC 699
3.1.6 Directive Principal of state Policy

There are some provision which are provide the DPSP when the state ,responsible for the
protection of rights of children.

Indian Constitution further directs the State under Article 39(e), to adopt protective measures
so that, the tender age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength. Thus, it imposes a ban on the
employment of children in any occupation injurious to the lives of tender aged children.

The provision contained in Article 39 (f) urges upon the State to see that "children are given
opportunities and proper facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and
against moral and material abandonment.

In Lakshmi Kant Pandey v. Union of India17, a writ-petition was filed on the basis of a
letter complaining of malpractices indulged in by social organisation and voluntary agencies
engaged in the work of offering Indian children in adoption to foreign parents. It was alleged
that in the guise of adoption Indian children of tender age were not only exposed to the long
dreadful journey to distant foreign countries at great risk to their lives but in case they survive
they were not provided any shelter and relief homes and in course of time they become
beggars or prostitutes for want of proper care. With the object of ensuring the welfare of the
child the Supreme Court directed the Government and various agencies dealing with the
matter to follow these principles in such cases as it is their constitutional obligation under
Arts. 15 (3), 39 (e) and (f) to ensure the welfare of the child.

In Gaurav Jain v. Union of India18, the Court rejected the demand for providing separate
schools and hostels for children of prostitutes as it was not in the interest of such children.
The application under Art. 32 was made through public interest litigation asking for direction
to the government for making such provisions for children of prostitutes.

17
( 1984) 2 SCC 244
18
AIR 1990 SC 292
Article 41 requires that," the State shall within the limits of its economic capacity and
developments, make effective provision for securing the right to education".

According to Article 42, "the State shall make provisions for securing just and humane
conditions of work and maternity relief".

Article 45, as originally stood, required "the State shall endeavour to provide, within a period
of ten years from the commencement of this Constitution, free and compulsory education for
all children until they complete the age of fourteen years". The directive contained in Article
45 is now omitted and it is substituted by the new directive entitled 'compulsory early
childhood care and education for children'. According to it, "the State shall endeavour to
provide early childhood care and education for all children until they complete the age of six
years".

Article 46 directs the State to promote with special care the educational and economic
interests of the weaker sections of the people, and in particular, of the scheduled castes and
scheduled tribes and to protect them from social injustice and all forms of exploitations. This
provision, applicable to the children of such class.

3.1.7 Fundamental Duties

Part IV-A of the Constitution, which contains the Fundamental Duties of the citizens of India
was added by the Constitution (42nd Amendment) Act, 1976, it contains Article 51 A only.
But later, a new clause (k) was inserted by the Constitution (86th Amendment) Act, 2002,
now Article 51A(k) imposes a fundamental duty on parent or guardian "to provide
opportunities for education to his child or, as the case may be, ward, between the age of six to
fourteen years".

3.2 Bharatiya Nyaya Sahita , 2023

There are several provisions in BNS which pertain to Children and they are discussed here:

3.2.1 Children incapable of committing crime

In BNS Section 20 and 21

Sections 20 and 21 of the BNS grant immunity to an infant below a particular age from
criminal responsibility. Section 20 totally absolves a child under 7 years of age from criminal
responsibility, whereas section 21 grants partial immunity against prosecution and
punishment for a child above 7 and under 12 years of age. This rule is based on the general
proposition that an infant below a certain age is incapable of distinguishing between right and
wrong and so no criminal responsibility should be fastened in law for his deeds.

A careful perusal of the provisions under sections 20 and 21, BNS For instance, while section
20 confers immunity on a child under seven years and section 21 to one above 7 years, no
provision has been made in regard to an infant of 7 years of age.

3.2.2 obscenity

Sections 294 and 295 of the BNS have been enacted for protecting and safeguarding the
public morals by making sale, etc., of obscene literature and publication in general, and to
young persons in particular, a cognizable offence. Obscenity contained under sections 294
and 295 has been borrowed from English law, it would be appropriate to examine the test of
obscenity, given by Cockburn CJ of the House of Lords in R. Hicklin, which is perhaps the
earliest case on the subject, as follows:- The test of obscenity is this, whether the tendency of
the matter charged as obscenity is to deprave and corrupt those whose minds are open to such
immoral influence and into whose hands a publication of this sort may fall. It is quite certain
that it would suggest to the minds of the young of either sex, or even to persons or more
advanced year, thoughts of a most impure and lascivious character." 19

section 294 punished shall be punished on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine which may extend to five
thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment
of either description for a term which may extend to five years, and also with fine which may
extend to ten thousand rupees.

section 295 shall be punished on first conviction with imprisonment of either description for a
term which may extend to three years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with imprisonment of either
description for a term which may extend to seven years, and also with fine which may extend
to five thousand rupees.

19
(1868) 3 QB 360
These sections are very important in curbing the menace of child pornography in addition to
specific provision in this regard in POCSO act, 2012.

3.2.3 Offence relating to children

The offence related to children under BNS include some sections there are:

Section 88 provides for the offence of causing miscarriage . It is not an offence if done in
good faith for saving the life of women. Further section 89 deals with such cases where in
miscarriage is caused without consent of women then that is offence.

Section 91 provide for infanticide in the BNS which comes in the category of crimes against
children. This section of the BNS provides punishment for the act of killing an infant.

In section 92 states who ever does the act of causing death of quick unborn child by act
amounting to culpable homicide. In both the section 91, 92 contemplated is death of an
unborn child. In section 91, clearly mention act is done with the intention to cause death of
unborn person. But under section 92 act is done with mensrea or the intention to commit
culpable homicide, which act though does not result in the actual death of the mother, but
results in the death of the quick unborn child.

Section 93 specifies the abandonment or desertion by a parent of his or her child of tender
age. The section will apply only the exposing and desertion of a kid under the age of twelve
by a parent or other person responsible for the child. The exposure and abandonment by a
father or mother of a child under the age of twelve will be punished for the same.

Section 94 as per section the culprit must secretly dispose of the dead body of a child. If he
disposes of a living child, then the action of the culprit would not attract section 94 BNS.
Such disposal must be in a secret place and with the intention to conceal its birth. Lastly, the
secret disposal of the body must be with the sole intention of concealing or attempting to
conceal its birth.

3.2.4 Kidnapping

Provisions for kidnapping and abduction are contemplated under section 137 to 146 of BNS,
[Link] 137-this section deals with kidnapping of minor, the word 'minor' which is the
word “minor” for the purpose of this section has been defined as a male child under 16 and a
female child under 18 years of age . A female child may be married as well as unmarried.
Section 139 kidnapping for begging ,The section aims at punishing unscrupulous persons
who have been knows to organise begging as an industry and fatten on the ill-gotten gains
obtained from the practice of begging. It is a social evil and the present section is intended to
punish the miscreants who engage and exploit children for the purposes of begging.

The section makes kidnapping or obtaining custody of a minor, and the maiming (crippling)
of a minor for employing him for begging, a specific offence and provides for a severe
punishment of 10 years either rigorous or simple or life term with fine.

Section 95 Whoever hires, employs or engages any child to commit an offence shall be
punished with imprisonment of either description which shall not be less than three years but
which may extend to ten years, and with fine; and if the offence be committed shall also be
punished with the punishment provided for that offence as if the offence has been committed
by such person himself.

Section 96 , BNS is attracted when a person induces a minor under 18 years of age to go to
any place, or to do any act, with the intention or knowledge that such minor may be forced or
seduced to illicit intercourse with another person. The section has been framed more with the
desire of safeguarding the public interest in morality than the chastity of the particular
woman. 20

Section 141, The girl is imported into India from places outside India, including the State of
Jammu and Kashmir; The age of the girl imported is below 21 years; and The importation
must be with the intent that the girl may be, or knowing it to be likely that she will be, forced
or seduced to illicit intercourse with another person. Punishment may extend to imprisonment
for 10 years and fine.

3.2.5 Rape:

In BNS,2023 sexual abuse of children by including them in the provisions on rape. The rape
is defined in section 63 and penalties are penalty are provided for in section 64, 65.

Section 65(2): this section provides for the offence of rap committed on women who is
below the age of 12 years.

20
Bhagwati Prasad v. Emperor, AIR 1992 All 709(710)
Section 70(2): this section provides for the offence of gang rape committed on women under
the age 18 year.

3.2.6 Child trafficking provisions

There are various sections in the BNS that which is address the trafficking of children for the
purpose of prostitution. The relevant provisions are defines:

(1)section 143:it defines the trafficking of child or more than one child purpose of
exploitations recruits, transports, harbours, transfers or receive a persons gives 6 forms of
categories which is commits the offence of trafficking.

(2)Section 144: this section deals with the criminal liability of a person who knowingly
engages trafficked minor or person for sexual exploitation in any manner.

(3)Section 98 and 99: this sections deals with the selling and buying child for purposes of
prostitution Section 98, BNS punishes the sale of minor girls below the age of 18 years for
the purpose of prostitution, or illicit intercourse, or for other unlawful and immoral purpose. 21
The provision envisages protection of the chastity of girls. This section applies lies to both
married and unmarried female minors irrespective of caste or community, including girls
belonging to the dancing girl22caste. The offence consists in the intentional or conscious
exposure of a minor to the danger of [Link] offence consists in selling or letting to
hire or disposal of a person under the age of eighteen years, for the purpose of prostitution or
illicit intercourse with any person or any unlawful and immoral purpose.

Section 99, BNS the two sections deal with trafficking in minor girls under the age of 18
years. The buying or hiring of minor girls must be from a third person. 24This section punishes
buyers or hirers of minor girls for the purpose of prostitution or illicit intercourse with any
person or for unlawful and immoral purposes.

When a brothel keeper allowed a girl to visit the brothel for two or three hours in the night
and allowed her to prostitute herself to customers for money, this constituted obtaining of
possession of such a girl within the meaning of the Act 25. Similarly, where the accused, a

21
Venku [Link],1888 ILR 1 Mad 393.
22
Ramanna,1889 ILR 12 Mad 273
23
Raghavan on Law of Crimes,3 rd Edn,(1980)p 897.
24
pp [Link] Mutayalu,(1918) 19 Cr LJ 965
25
Emperor [Link] Sukha, AIR 1928 Bom 336.
brothel manager, obtained possession of a girl below 18 years of age, the presumption was
that she would be used for prostitution26.

3.3 Protection of children from sexual offences Act,2012

The Act of 2012 is a gender-neutral piece of legislation. It defines a child as any person under
the age of 1827 and protects all children from sexual abuse.

Whenever the victimised kid is mentally unwell or the violence is committed by someone in a
position of authority or power over the child, the aforementioned offences are considered
"aggravated."The Act prescribes stringent punishment graded as per the gravity of the
offence, with a maximum term of rigorous imprisonment for life, and fine.

The POCSO Act also includes measures for avoiding re-victimization, creating a child-
friendly environment throughout the justice proceedings, and emphasising the principle of
"child's best interest."It includes child-friendly processes for accurate reporting, credible
evidence recording, investigation, and expeditious prosecution of offences, as well as trial in-
camera and without revealing the child's identity through designated Special Courts. This also
does provide for the Special Court to decide the amount of compensation payable to a child
who has been sexually abused, with the proceeds going toward the child's medical treatment
and rehabilitation. 28

It calls for the appointment of Special PP and assigned Special Courts to include child-
friendly processes for reporting, recording of evidence, investigation, and rapid prosecution
of offences. The Act imposes severe penalties that are graded according to the gravity of the
offence.

26
Article 23(1) of the Constitution.
27
section 2(d) of the Act
28
POCSO Act-Providing Child-Friendly Judicial Process. Press information Bureau, Government of India.
Accessed at http:/[Link]/newsite/[Link].?relid=86150
Scheme of POSCO Act,2012

Chapter -1 Preliminary(section 1-2)

Chapter -2 Sexual Offence against

Chapter-3 Using Child for Pornographic Purposes and

Chapter-4 Abetment of and Attempt to commit an offence (section 16-18)

Chapter-5 Procedure for Reporting of Cases(section 19-23)

Chapter -7 Special Courts (section -28-32)

Chapter -8 Procedure and Power of Special Courts and Recording of Evidence (section 33-
38)

3.3.1 Penetrative Sexual Assault and its aggravated form

Section 3 defines the offence of Penetrative Sexual Assault and its punishment is specified
under Section 4. Offence of Penetrative Sexual Assault 29 occurs if a person:

The person commits offence if he makes child to do any of the above acts, with himself or
with any other person.

Punishment30 : if any person commits the offence of penetrative sexual assault then such
person is liable for imprisonment which is 10 years to LI, and shall also be liable to fine. This
punishment was enhanced from the imprisonment of 7 years to Life Imprisonment by the
Amendment of [Link] punishments were also added in section 4 by Amendment Act of
2019, whereby if any person commits offence under section 3 on a child who is below the age
of sixteen years then such person will be punished for term 20 years to LI referring to
remaing life and fine.

Section 4 also states that the fine should therefore be just and rational, and it must be paid to
the victim, to meet his/her medical expenses and must be utilized for rehabilitation of such
victim.

29
section 3
30
section 4
3.3.2 Sexual Assault and its aggravated form

Section 7 defines the offence of Sexual Assault and its punishment is provided under section
8.

Punishment31: Its punishment term 3 to 5 years, and [Link] Sexual Assault: section
9 defines the offence of Aggravated sexual assault. It also provides for certain persons in
power, if they commit sexual assault then it is considered as Aggravated Sexual Assault. Its
language is similar to that of section 5.

It is pertinent to note that, a new sub-section 9 (v) was inserted by 2019 Amendment Act,
whereby if any person administers a child any drug or chemical substance or hormone so that
such child attains sexual majority at earlier stage then such act is considered aggravated
sexual assault. This addition is a welcome move as Law recognized such illegal activity
which is prevalent in the child trafficking and child prostitution market.

Punishment32: Punishment of Aggravated sexual offence is provided under section 10.

This punishment has been enhanced from minimum of three years and maximum of five
years by Amendment Act of 2019.

3.3.3 Sexual Harassment

Section 11 defines the offence of Sexual Harassment and its punishment is provided under
section 12.

This section further state by way of Explanation that any question in regard to sexual intent
will be considered as a question of fact.

Punishment33: if any person commits the act of sexual harassment then he shall be liable for
the punishment for a term of 3 years and fine.

31
section 7
32
section 10
33
section 12
3.3.4 Child Pornography

Chapter 334 of the Act deals with Child Pornography. Term "child pornography" is defined.
under Section 2(1)(da)35 of 2012 Act provides for the meaning of "child pornography".
According to it, it means any forms of visual depiction of sexually explicit conduct wherein a
child is involved and which may include photograph, video, digital or any type of computer
generated image which may be indiscernible from a real child and an image made, modified,
or altered to look like a child.

Child sexual abuse is a multidimensional problem with legal, social, medical and
psychological implications. The law has some shortcomings around the following issues

A. Consent

Even if the kid or adolescent refuses a medical evaluation and a member of the family or
officer involved insists on one, the POCSO Act is mute and provides no explicit direction.
The concept regarding consent must be resolved in such circumstances. When a surviving
child (under 12 years of age) is there, it is preferuble to acquire qualified parental consent,
however if the surviving child is a teenager (12-18 years of age), permission should be sought
both from parents and the survivor. Nevertheless, in order to save the baby's life, emergency
therapy should he administered without regard for consent or legal difficulties.

B. Medical Examination

Section 27 (2) of the POCSO Act requires that a medical examination be performed by a
gynecologist if a girl child is affected. The law, on the other hand, requires the accessible.
healthcare professional to offer emergency medical attention. Section 166A, on the other
side, obliges the duty medical officer of the state to conduct a regular examination of the
raped woman. This paradoxical legal situation arises when a female doctor is not available.

C. Cost of treatment:

The law imposes a legal obligation on the medical community and the organization to
provide free medical care to survivors. If proper facilities are not available or costly
procedures are not required, the government should bear financial responsibility for the

34
section 13-15 Act of 2012
35
inserted by Amendment Act of 2019
expenses; otherwise, the hospitals may deliver substandard medical care or lose access to
complete survival therapies.

D. Consensual sexual intimacy:

Under the POCSO Act 2012, sexual intercourse between two teenagers or adolescents and
adults is considered illegal, as the law makes it a crime to have sexual intercourse with a
person under the age of 18. Confession or gender or marriage victim/accused or aged.
However, it was argued that any homosexual behaviour between two adolescents subjected to
persistent sexual misconduct should not be considered a crime; otherwise, both adolescents
would be punished. under the POCSO Act, 2012. The recent 2013 modification to the Ipe
relating to the Rape, on the other hand, emphasises that the age of consent for sex is 18 years,
making it possible to charge anyone with voluntary sexual intercourse with a person under
the age of 18. It's possible that the incidence of rape cases may rise. A more significant
consequence is that all MTP (medical termination of pregnancy) instances performed on
children under the age of 18 must be reported by obstetricians and gynaecologists.

E. Child marriage:

While child marriage is prohibited by secular law in India, it is permitted by some private
laws, further complicating the situation. When the law is up for revision, these issues must be
addressed.

F. Training:

The POCSO Act of 2012 mandates medical, faculty, judicial, legal, and law enforcement
institutions receive training. Research, data, surveillance, and awareness campaigns are the
most difficult obstacles. One of the most significant distinctions in offering high quality care
and fairness is the training of all parties involved. Child-friendly interviews, systematic
evaluations. evidence collecting, sexually transmitted infections, and HIV will be given to all
medical undergraduates and primary care providers.
 CHAPTER-4

JUDICIARY PROCESS IN CHILD PROTECTION

In the Indian judiciary system in child related issues are so scattered. In the recent time
personal Liberty in child related issues article 21 clearly said that nothing more than the
liberty of the physical body, that is freedom from arrest and detention without the authority of
law. The justice provide in our society which is rebuilt the balanced society. The important
part of the supreme court is secured the rights and freedom of the people. In Indian
constitution article 21, the supreme court case to case very much landmark judgement
provide which are the clearly said the right to life is not just existence but the privilege to live
with dignity. So, the right to life is not just about the body surviving-it is allowing every
person to live as a valued human being. So in this case if a child is a victim then that is not
considered an offence against the child except if the dealt with article 21 of the Indian
constitution. Always the Indian constitution her all the part judiciary which is try to get
recovered the equal status and equal opportunities in every India citizens. In three pillar of the
parliament the legislative, judiciary, executive. The main role play on the society that is the
judiciary. In India judiciary system played a important role play in children protection and
rights.

4.1 Protection of children on the basis of fundamental rights

In a Indian constitution article 12 to 35 which is basically provides the fundamental right. A

child is a national asset and, therefore, it is the duty of the state to look after the child with a
view to ensecuring full development of its personality [Link] Nations children are a supremely
important asset. Equal opportunities for development to all children during the period during
the period of growth should be our aim, for this would serve our larger purpose for reducing
inequality and ensuring social justice.2

Fundamental rights represent the basic values of people of the country and are aimed at
protecting the dignity of the individual and creating conditions in which every human being
can develop his personality to the fullest extend. They state that the basic structure of human
rights and impose negative obligation on the state not to encroach on individual Liberty in its
various dimensions.

1
Sheela Barse v. union of india,1986 AIR 1773
2
[Link] ,”Basic framework for child welfare under Indian constitution.”A critical approach ,”(1981),7KLJ,at 99.
In the matter of Daryao v. state of up3 the fundamental rights are not only to protect
individual right but also the high public policy. Liberty of protection of fundamental rights
and individual rights are very essence of the demographic way of life adopted by the
constitution and the duty of this court and privilege to uphold those rights.

Supreme court also observed Mohini Jain v. state of Karnataka4 the right to education
flows directly from right to life. The right to life under article 21 and the dignity of an in
dividuals cannot be assured unless it is accompanied by the right to education ."the supreme
court has at several order to treat as a right to free education is available only to children until
they complete the age of 14 years but after that the obligation of the state to provide
education is subject to the limits of its economic capacity and development.5

4.2 prohibition of child labour

The children are just like buds, instead of taking proper care, in a tender age when they
require the almost love, affection , care and proper education. They become victim of existing
exploitative set up and due to denial of minimum basics they are forced to join the labour
force, is development from every espect and also regards the upliftment of the society as
well.

A child is not a born labourer. The social, psychological and economic of mostly compels
him to resort to an act of earning at such a tender age. It has been officially accepted since
1954 that, child labour is no longer a medium of economic exploitation, but is necessitated by
economic necessity of the parents and on many cases, that of the child himself.6

In furtherance of provision of this article Supreme court held in case of "peoples union for
democratic rights v. union of India 7 , (popularly known as Asiad Case), The construction
work in hazardous employment and, therefore, under article 24, no child below the age of 14
years can be employed in the construction work even if construction industry is not specified
in the schedule to the employment of children act.

3
AIR 1961 SC 1457
4
(1992) 3 SCC 666.
5
Unni Krishan ,J.P v .State of Andhra Pradesh, AIR 1993 SC 2178
6
Government of india :child labour in india;1954,P2
7
AIR 1982 SC 1473
In the Apex court In Bachpan Bachao Andolan v. Union of India 8, the Supreme Court in a
PIL for the serious violations and abuse of children forcefully detained in circus without
access to their families under extreme inhuman conditions, sexual, physical and emotional
abuse and deprived of basic human needs like food and water, sanitation, sleeping times, high
risk factor etc. issued these directions: (1) For implementing fundamental rights under Article
21-A, the Central Government must issue suitable notifications prohibiting the employment
of children in circuses within two months; (2) The respondents would conduct simultaneous
raids in all the circuses to liberate the children and check the violation of their fundamental
rights and the rescued children would be kept in the Care and Protective Homes till the
attainment of 18 years age; (3) The respondents would frame proper scheme for rehabilitation
of rescued children from circuses and (4) The Secretary of Ministry of Human Resources
Development, Department of Women and Children Development would file a comprehensive
affidavit with in 10 weeks.

In Labourers, Salal Hydro Project v. State of Jammu and Kashmir 9, court held that the
interest of large number of child labourers working in the construction of Salal Hydro
Project, a hazardous work. The court was constrained to remark that the problem of child
labour is a difficult problem and it is purely on account of economic reasons that parents
often want their children to be employed in order to be able to make both ends meet. The
court said that this is an economic problem and it cannot be solved merely by legislation. So
long as there is poverty and destitution in the country, it will be difficult to eradicate child
labour. Bhagawati gives certain suggessions also, the Central Government shall provide that
childrerz of construction workers who are living at or near the project site should be given
facilities for schooling.

In M. C. Mehta v. State of Tamil Nadu 10, the Supreme Court in a PIL. held-The children
below the age of 14 years cannot be employed in any hazardous industry, mines or other
[Link] Court directed setting up of Child Labour Rehabilitation Welfare Fund and asked
the offending employer to pay for each child a compensation of Rs. 20,000 to be deposited in
the Fund and suggested a number of measures to rehabilitate them in the phased manner. The
liability of the employer would not cease even if he would desire to disengage the child

8
AIR 2011 SC 3361
9
AIR 1984 SC 177
10
AIR 1997 SC 699
presently employed and asked the government to ensure that an adult members of the child's
family get a job in a factory or anywhere in lieu of the child.

4.3 Protection of children against exploitation

In case of Childline India Foundation vs. Alan John Waters and Ors. 11, "the complaints
of physical and sexual abuse of children who were kept in shelter homes in Mumbai were
presented before the Supreme Court. Convicting the accused who deserved no leniency the
court observed as follows: "Children are the greatest gift to humanity. The sexual abuse of
children is one of the most heinous crimes. It is an appalling violation of their trust, an ugly
breach of our commitment to protect the innocent. There are special safeguards in the
Constitution that apply specifically to children.""The Constitution has envisaged a happy and
healthy childhood for children which is free from abuse and exploitation".

In Re Exploitation of children in orphanage in State of T.N. v. Union of India 12, Supreme

Court recognized "the plight of children in orphanages and sexual exploitation of children
and gave detailed direction to union government and National Commission for Protection of
Child Rights as well as to State Commission for Protection of Child Rights and directed them
to file a status report in Supreme Court on or before 15 January 2018. Court held that the
definition of a child in need of care and protection must be given a broad and purposeful
interpretation and that the benefits envisaged for children in need of care and protection
should be extended to all such children in fact requiring State care and protection; so that
children can be protected from exploitation and abuse."

4.3 Right to education

The right to education was not a fundamental right when the time of commencement of
constitution of India. In that time this is include as a directive principle of State policy under
article 45 provides that "the state shall endeavour to provide early childhood care and
education for all education until they complete the age of 6 years.

For the first time in court, in case of "Mohini Jain vs State of Karnataka 13" held that the
right to education flows directly from right to life. The right to life under article 21 and the
dignity of an individual cannot be assured unless it is accompanied by the right to education.

11
(2011) 6 SCC 261
12
(2017) 7 SCC 578
13
(1992) 3 SCC 666
Along with article 21 with article 38, 39 (a),41and 45, the court opinion that the state to
provide education for its citizen.

In Unni Krishnan v. State of A.P 14 the Court specifically held-The right to education for the
children of the age of 6 to 14 years is a fundamental right. After 14 years of age of the
children, the obligation of the State depends on the economic capacity and development. The
Court did not agree with the decision of the Mohini Jain and overruled it on this point.

In this case the judgement in new article 21-A was added by the constitution (86th
amendment) act, 2002 which provided for "free of compulsory education to all children of
age of 6 to 14 years.

Apex Court held in case of Avinash Mehrotra v. Union of India 15, "Right to Education
includes right to receive education in safe Schools. Schools should adhere to basic safety
standards to give effect to constitutional provision under Article 21-A. In this case, Supreme
Court gave directions to all government and private schools to implement safety measures
prescribed by National Building Code of India 2005 and also issued directions to education
functionaries who were asked to file a compliance report within 1 month. This case is one of
the classic example of Apex Court's proactive role in protection of child and their safety."

4.5 Protection against child against sexual abuse:

Prerana v. State of Maharashtra and others 16 held that, since these girls were minors and
were not involved in any offence, they could have been described as children in need of care
and protection. Therefore, they ought to have been produced before Child Welfare
Committee with the object of their reformation and rehabilitation. Further it was said that,
any juvenile rescued from a brothel under Immoral Traffic (Prevention) Act, 1956 should be
released only to care and custody of a parent/guardian after such parent/guardian has been
found fit by the Child Welfare Committee, to have the care and custody of the rescued
juvenile. If the parent/guardian is found to be unfit to have the care and custody of the
rescued juvenile, the procedure laid down under the Juvenile Justice (Care and Protection of
Children) Act, 2000 should be followed for the rehabilitation of the rescued child. Another
important matter is that, an advocate appearing for a pimp or brothel keeper is barred from

14
(1993) 1 SCC 645
15
(2009) 6 SCC 398
16
(2003) 1 ILD 438 (Bom).
appearing in the same case for the victims rescued under the Immoral Traffic (Prevention)act,
1956.

Vishal jeet v. Union of India 17 Apex Court was of the view that, this malady cannot be
eradicated either by banishing, branding, scourging or inflicting severe punishment on the
helpless and hapless victims most of whom are unwilling participants, and involuntary
victims of compelled circumstances and who, finding no way to escape, are weeping or
wailing throughout. This devasting malady can be suppressed and eradicated only if the law
enforcing authorities in that regard take very severe and speedy action against all the erring
persons such as pimps, brokers, brothel keepers as well as traffickers. At the same time the
Court urged the State, all voluntary organizations and public spirited persons to come to aid
of these victims, to retrieve them from prostitution and other immoral engagements and to
socially reintegrate them.

Dhananjoy Chatterjee v. State of West Bengal 18 it was held that the offence was not only
inhuman and barbaric, but a totally ruthless crime of a rape followed by cold-blooded murder
and it was an affront to human dignity. The Supreme Court observed that, shockingly large
number of criminals go unpunished thereby increasing, encouraging the criminals and the
ultimate, making justice suffers by weakening the system's credibility. The imposition of
appropriate punishment is the manner in which the Court responds to the society's cry for
justice against the criminal. Justice demands that Courts should impose punishment befitting
the crime so that the Courts reflect public abhorrent of the crime. The Court must not only
keep in view the right of the criminal, but also the rights of the victim of the crime and the
society at least while considering the imposition of appropriate punishment.

Tukaram and Anar. v. state of Maharashtra 19 (mathura case) an 18 year minor girl was
raped by two police constable when she went to record a statement. When they were about to
leave the police station, she was kept back at the police station in the late hours of the night
by one of the constable, who was on duty that time she raped by that constable. Then the high
court rightly distinguished between "consent" and "passive submission" and held that mere
passive or helpless surrender of the body and its resignation to the others lust induced buy
threads or fear cannot be equated with desire or will, nor furnish an answer by the mere fact
that the sexual act was not in opposition to such desire or violation.

17
AIR 1990 SC 1412.
18
(1994) 2 SCC 220.
19
AIR 1979 SC 185 :(1979)2 SCC 143
Although the offence of rape is usually effected by violence, it has been decided that rape can
also be committed without any violence, the essential point being that the woman's free
conscious permission has not been obtained in the case of adults, and in the case of girls
below the age prescribed in the Sexual Offences Act, 1956, consent is no defence and
resistance need not be looked for. 20

In State of Gujarat v. Lavaram Ram Chandra 21, the subject of rape was sixteen year age
and it was held that no mensrea is essential to constitute a rape, and the consent of the girl is
unmeaningful. However, liability for offence was definitely absolute.

20
In re Anthony, AIR 1960 Mad 308 :1960 [Link] 927
21
1980 Cri LR 187 (Guj.)
 CHAPTER-5

CONCLUSION AND SUGGESTION

India is a place of discrepancies. No other country has had such a profound impact on ethnic
groupings, mutually unintelligible languages, topography and climate, faiths and cultural
practises, and economic growth levels India has a population of over one billion and over 400
million children. At one time we were all children. This is something that is common to all of
us. Many of us have children or are somehow involved in the lives of youngsters. We want
our children to be happy, strong, healthy, and successful as they grow up. We want them to
be fortunate. They are the next generation of parents, grandparents, caretakers, educators,
physicians, cops, magistrates, civic leaders, trust leaders, legislators, and policymakers. It is
apparent that violence against children is not a unique occurrence, but rather a complex
problem with deep roots. The events and settings that contributed to the formation of such
aggression, as well as encouraged such behaviour through passivity and inaction, are always
the source of this genesis. Some youngsters become more violent than others in this
environment, and they forgive themselves. How we deal with crimes affecting children will
have a direct impact on future families and communities.

SUGGESTIONS-

[Link] people do not report cases of child sexual abuse due to insensitive behaviour of police
and post victimization of the victim, In this problem it is suggested that police personnel with
the specially appointed as juvenile police or child protection unit must be given extensive
training annually to deal with child sexual abuse cases.

2. Immediate medical and economic aid and assistant to the aggrieved child.

3. Establish a separate authority to review the implementation of act nationwide and Sub
authorities must be established at state level, district level, whether this act is properly being
implemented or not.

4. Compulsory workshop must be conducted child abuse and steps for early detection of any
act of child abuse if committed against their child to prevent aggravated assault on child.
 BIBLOGRAPHY

BOOKS:

- Dr. J.N. Pandey ; Constitutional Law of India

- Dr. S.K. Chatterjee : Offence Against Children and juvenile Offence.
- Dr. S.S Singh: Offences against children and Juvenile Offence.
- K.D Gaur: IPC

ACTS AND LEGISLATION:

-Bharatiya nyaya sanhita,2023

-Constitution of India,1950

-Juvenile Justice (Care and Protection of Children) Act, 2015

-Commission for Protection of the Rights of the Child Act, 2005

-POCSO ACT 2012

-Probation of Offenders Act, 1958

-Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960

-Immoral Traffic Prevention Act, 1986

-Child Labor (Prohibition and Regulation) Act, 1986

-Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1987

-Child Pornography Prevention Act 1996

-Child Abuse Prevention and Treatment Act, 1974 and 2010

ARTICLE:

-Milind Rajratnam; Combating Child Pornography in India: May 14, 2020; accessed at
[Link]
-CHILDLINE India Foundation: Documents Cause View Point CHILD SEXUAL ABUSE-
The Law and the Lacuna". [Link]. 2010-01-19.

-A SHORT GUIDE TO THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

ACT (POCSO) 2012, JANUARY 5, 2017 by THMA U RANGLI JUKI Accessed at -
[Link]
2012/

-Child Pornography In India During The Lockdown: Are Our Children Safe? Aarushi Jain &
Yojit Pareek 23 Jun 2020; accessed at [Link]
india-during-the-lockdown-are-our-children-safe-158778

REPORT:

-The Law Commission in its 172nd Commission Report.

-The Planning Commission, Government of India, "Report of the Working Group on Child
Rights for the 12th Five Year Plan (2012-2017)

-Ministry of Women and Child Development, Government of India, "National Study on

Child Abuse: India 2007, "2007

-United Nations Children's Fund, "The Situation of Children in India a profile,"

May 2011

-NCRB 2015

-2011 census

-A Guide for District Administration for Implementation of Juvenile Justice Act.