A brother and a sister opposed each other: Supreme Court

A brother and a sister opposed each other: Supreme Court

Sets aside the High Court ruling on 'skin-to-skin' contact

The Supreme Court has set aside the ruling of the Bombay High Court that held that pressing the breast of a child without removing her clothes would not amount to 'sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act since there was no 'skin-to-skin' contact.

Interestingly, Sidharth Luthra and Geeta Luthra, brother and sister, were not on the same page on this account in the Supreme Court.

It led the bench of Justices UU Lalit, Ravindra Bhat and Bela Trivedi to observe, "This time a brother and a sister also opposed each other."

While the brother appeared as amicus curiae to put forth his views in favour of the accused, the sister represented the National Commission for Women (NCW), one of the parties that filed an appeal against the controversial HC judgment.

While delivering its verdict on the challenge to the Bombay High Court, the apex said, the law has to be given an interpretation that gives effect to the intention of the legislature instead of defeating it.

The court underscored, "The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child. The construction of a rule should give effect to the rule rather than destroy it. The intention of the legislature cannot be given effect to unless the wider interpretation is given."

During the course of arguments, Sidharth argued that a conviction under the POCSO Act required touch. However, the second part of the provision needed to be clarified. He submitted that the two words 'sexual intent' and 'physical contact' were very important and needed to be considered. Sexual intent will require physical contact, he maintained.

On the other hand, Geeta argued that 'touch' and 'physical contact' were synonyms and there could not be differentiation in their interpretation.