Consensual sex with minor not crime, Delhi court says

August 26, 2013

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New Delhi, Aug 26: A city court has observed that consensual sex with a girl aged below 18 years does not constitute an offence under the Protection of Children from Sexual Offences (POCSO) Act.

The court said the provisions of POCSO Act suggest that where a physical relationship — which is not in the nature of an assault — takes place with the minor girl's consent and where the consent has not been obtained unlawfully, no offence can be said to have been committed.

Rejecting the plea of the police and Delhi Commission for Women that POCSO Act prohibits minors from having any kind sexual relationship, additional sessions judge Dharmesh Sharma said, "I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the state and no individual below 18 years can be allowed to have pleasures associated with one's body."

ASJ Sharma, however, urged state authorities to spread awareness related to unsafe sex or early marriage. "But there lies a greater responsibility on all of us, the state including police in spreading and creating public awareness about the impact of girl or boy marrying at a tender age or indulging in unsafe sexual activities," he said.

The court made these observations while acquitting a 22-year-old youth of charges of kidnapping and raping a 15-year-old girl whom he later married. The youth, a native of West Bengal, was acquitted of the charges as the court held that the minor, on her own will, accompanied him and obstacles should not be put in their happy married life.

"As the evidence indicates, they got married voluntarily with their free consent. Hence no case is made out under section 363 (kidnapping) and 366 (kidnapping or inducing woman to compel her marriage) of the IPC," the court said.

"In my opinion, it would neither serve the object of present enactment (POCSO Act) nor the purpose of criminal laws to hold the accused guilty on the ground that he had sexual intercourse with the girl below 18 years," the judge said, adding that it would not be good for the girl if her husband was sent to jail. The POCSO Act treats girls and boys below 18 years of age as minors.

"It is high time that state authorities, its machinery, NGOs and women groups made a determined and sustained endeavour to reach out to all in schools, colleges and residential places, thereby creating public awareness on various aspects of life in case of marriage at a tender age... besides creating awareness amongst adolescents and young adults about the serious psychological and physical health issues that such a relation entails," the court observed.

According to the prosecution, a complaint was filed before the police on March 5 by the minor girl's mother about her daughter going missing since February 26.

The accused was arrested on March 6 and the girl was also recovered from his custody, it said. The girl, in her statement recorded before a magistrate, said she had willingly gone with the accused to his native place in Kolkata and they got married in a temple there and since then they have been living together.

During the trial, the youth told the court that the girl had accompanied him to Kolkata on her own and they got married there but he denied having physical relations with her. The court also noted that the marriage was accepted by the girl's mother.

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News Network
November 15,2024

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Union minister Amit Shah on Friday, November 15, said PM Narendra Modi will amend the Waqf Act despite opposition from leaders like Uddhav Thackeray and Sharad Pawar.

"Modi ji wants to change the Waqf Board law, but Uddhav ji, Sharad Pawar and Supriya Sule are opposing it," Shah said, addressing a rally at Umarkhed in Maharashtra's Yavatmal district.

"Uddhav ji, listen carefully, you all can protest as much as you want, but Modi ji will amend the Waqf Act," he said. Shah said there are two camps in the November 20 Maharashtra assembly polls, one of 'Pandavas' represented by the BJP-led Mahayuti and the other of 'Kauravas' represented by Maha Vikas Aghadi.

"Uddhav Thackeray claims that his Shiv Sena is the real one. Can the real Shiv Sena go against renaming Aurangabad to Sambhajinagar? Can the real Shiv Sena go against renaming Ahmednagar to Ahilyanagar? The real Shiv Sena stands with the BJP," Shah said.

"Rahul Baba used to say that his government would credit money in the accounts of the people instantly. You were unable to fulfil your promises in Himachal, Karnataka, and Telangana," he said.

Shah said the Mahayuti alliance has promised that women will get Rs 2,100 per month under the Ladki Bahin Yojana. "Kashmir is an integral part of India and no power in the world can snatch it away from us," Shah said.

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News Network
November 12,2024

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The Taliban regime has appointed Ikramuddin Kamil as the acting consul in the Afghan mission in Mumbai, Afghan media has reported.

It is the first such appointment made by the Taliban set up to any Afghan mission in India.

There was no immediate comment from the Indian side on the appointment that came.

The Ministry of Foreign Affairs of Afghanistan has announced the appointment of Kamil as the acting consul in Mumbai, the Taliban-controlled Bakhtar News Agency reported on Monday, citing unnamed sources.

"He is currently in Mumbai, where he is fulfilling his duties as a diplomat representing the Islamic Emirate," it said.

The appointment is part of Kabul's efforts to strengthen diplomatic ties with India and enhance its presence abroad, the media outlet said

Kamil holds a PhD degree in international law and previously served as the deputy director in the department of security cooperation and border affairs in the foreign ministry, it said.

He is expected to facilitate consular services and represent the interests of Afghanistan in India, the report added.

Kamil's appointment comes days after the external affairs ministry's point-person for Afghanistan held talks with the Taliban's acting defence minister, Mullah Mohammad Yaqoob, in Kabul.

Sher Mohammad Abbas Stanikzai, the Taliban's deputy foreign minister for political affairs, also posted on X about Kamil's appointment.

The appointment of Kamil is seen as part of efforts to facilitate consular services to the Afghan population in Mumbai.

There has been almost negligible presence of diplomatic staff at the Afghan missions in India.

Most of the diplomats appointed by the Ashraf Ghani government have already left India.

In May, Zakia Wardak, the seniormost Afghan diplomat in India, resigned from her position after reports emerged that she was caught at the Mumbai airport for allegedly trying to smuggle 25 kg of gold worth Rs 18.6 crore from Dubai.

Wardak had taken charge as the acting ambassador of Afghanistan to New Delhi late last year, after working as the Afghan consul general in Mumbai for more than two years.

She took charge of the Afghan embassy in New Delhi last November, after the mission helmed by then ambassador Farid Mamundzay announced its closure.

Mamundzay, who was an appointee of the Ghani government, had moved to the United Kingdom.

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News Network
November 13,2024

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New Delhi: The Supreme Court took a firm stance on ‘bulldozer justice’ today, affirming that the Executive cannot bypass the Judiciary and that the legal process must not prejudge the guilt of an accused. In a significant judgment, the bench led by Justices BR Gavai and KV Viswanathan set new guidelines for demolition practices, responding to petitions challenging the controversial bulldozer actions taken against individuals accused of crimes.

The rise of this practice, termed 'bulldozer justice,' has seen authorities in various states demolish what they claim to be illegal structures belonging to accused individuals. However, multiple petitions questioned the legality and fairness of this approach, bringing the matter before the court.

Justice Gavai highlighted that owning a home is a cherished goal for many families, and an essential question was whether the Executive should have the authority to strip individuals of their shelter. “In a democracy, the rule of law protects citizens from arbitrary actions by the state. The criminal justice system must not assume guilt,” stated the bench, underscoring that due process is a fundamental right under the Constitution.

On the principle of separation of powers, the bench reinforced that the Judiciary alone holds adjudicatory powers and that the Executive cannot overstep these boundaries. Justice Gavai remarked, “When the state demolishes a home purely because its resident is accused of a crime, it violates the doctrine of separation of powers.”

The court issued a strong warning about accountability, stating that public officials who misuse their power or act arbitrarily must face consequences. Justice Gavai observed that selectively demolishing one property while ignoring similar cases suggests that the aim might be to penalize rather than enforce legality. “For most citizens, a house is the product of years of labor and dreams. Taking it away must be an action of last resort, thoroughly justified,” he said.

In its directives under Article 142 of the Constitution, the Supreme Court established new demolition guidelines. These include:

Mandatory Show-Cause Notice: No demolition should occur without first issuing a show-cause notice. The person served has a minimum of 15 days or the duration stated in local laws to respond.

Transparency of Notice Content: The notice must include specifics about the alleged unauthorized construction, the nature of the violation, and the rationale for demolition.

Hearing and Final Order: Authorities are required to hear the response of the affected individual before issuing a final order. The homeowner will have 15 days to address the issue, with demolition proceeding only if no stay order is obtained from an appellate authority.

Contempt Proceedings: Any breach of these guidelines would lead to contempt proceedings. Officials who disregard these norms will be personally accountable for restitution, with costs deducted from their salaries.

Additionally, the court mandated that all municipal bodies establish digital portals within three months, displaying show-cause notices and final orders on unauthorized structures to ensure public transparency and accountability.

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