During the Pocso case registered against a father, the Kerala High Court found that in cases in which the husband and wife are located on loggerheads, and one of them is suing the custody of a minor child in which there are cases in which The other spouse invents facts to imply that to imply it in order to implement other spouses in Pocso crimes.
The sole defendant had contacted the High Court to apply for a case registered against him in accordance with Section 7 R/W (Pocso Act).
The only bank of the judiciary A. Badharudeen confirmed: “It is true that strict provisions are included in the Pocso law to punish the culprit that are involved in sexual assault, harassment and sexual harassment against children under the age of 18. The intention behind the legislation is to protect children's interest from sexual exploitation. In the practical application, however, apart from the registration of so many real cases, the abuse of the provisions of this law to provide points is not unusual. “
Lawyer Nithya R. represented the petent while the Jibu TS public prosecutor represented the respondents.
Factual background
The incident dates from 2018 when the accused father temporarily received custody for the minor at the age of 7 according to the provisional order of the family court. It was claimed that the accused touched the penis of the small victim with sexual intentions and made comments about the size of the penis, causing the crimes mentioned above.
Arguments
It was the case of the petent that all the allegations of the respondent who was divorced by the petent was wrongly raised to defeat him in a custody of her minor child. It was asserted that the petent got custody of his minor son because of his affection for him and that he had no sexual intention.
It was the case of the respondent's mother's mother that the pet by giving her approval of undergoing an IUI procedure in order to suppress his impotence from the outside world. It was also submitted that the petent after the birth of the minor victim was too cruel for the victim to call the minor victim as a bastard, and he spoke that he would kill him.
argumentation
The bank referred to the statement of the little victim, in which he had announced that he had love his father because he used to make sweets, juice, etc. when he came to the court. When asked, in which he was asked why he felt dissatisfaction with his father, he found that dissatisfaction began when he went to the court and the father touched his head, legs and the organ for urinating.
The bank explained that it is provided in Section 7 of the Pocso trade, which touches the vagina, the penis, the anus or chest of the child or the child the vagina, the penis, the anus or the chest of such a person or one Touching other person or having a different action with sexual intent, which contains physical contact without penetration, is an act of sexual assault. In addition, § 30 deals with the presumption of a culpable mental state, the intention, motive, knowledge of a fact and the belief in or the reason, deals with a fact.
He found that the medical documents produced by the woman would show that the victim was born by a donor, and the bank, the assisted reproductive technology (regulation) act 2021 referred the child born by assisted reproductive technology.
On the basis of the law in connection with the Pocso law, the bank said: “In cases in which the husband and wife are in loggerheads, and one of them sues to custody of a minor child, there are cases in which the other spouse , which is not ready to separate, is ready to separate yourself with custody for the minor that is used to manufacture facts to get the other spouse in Pocso crimes through the use of the child, whose custody is looking for becomes. The intention to imply the spouse who demands custody for the child is to avoid custody.
In the event of a review of the facts of the case, the bank found that the case is based on the submission of an application by the petent because of the custody of the minor child, and the claim is in particular during preliminary custody. “In fact, it arises in fact that the allegations of the second respondent are a subsequent thoughts to defeat the case of the petent, great facie.”
Therefore, the bank allowed the petition to be petition that had lifted the Pocso case.
Cause Title: XXXX against State of Kerala (neutral quote: 2025: Ker: 10981)
Petent: Proponent Nithya R., Shajin S. Hamed
Referent: Prosecutor Jibu TS, supporter Shaijan C George, Vinai John
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