This article has been written by Shruti Raghuvir, pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho)
Table of Contents
Introduction
People often think that cases of child abuse occur in other families and in other neighbourhoods, but not close to them. However, everyone should be aware that the victims of child abuse come from all socio-economic backgrounds, living conditions and races. Child abuse is regulated in India through the Protection of Children from Sexual Offences Act 2012. According to the National Crime Records Bureau, 109 children were sexually abused every day in India in 2018, an increase of 22 per cent over the previous year. According to the latest NCRB data, 32,608 cases were reported in 2017 and 39,827 in 2018 under the Protection of Children from Sexual Offenses Act (POCSO).
POCSO Act
The POCSO Act, 2012 is a comprehensive law to protect children from sexual abuse and pornography. Provisions related to child sexual abuse, such as special courts, special prosecutors, and persons supporting child victims, require special consideration. In 2018, 21,605 children were molested including 21,401 girls and 204 boys The highest number of child abuses were recorded in Maharashtra at 2,832, Uttar Pradesh in 2023 and Tamil Nadu at 1457. Crimes against children increased sharply more than six times between 2008 and 2018, from 22,500 reported in 2008 to 1,41,764 in 2018, according to NCRB data for 2008 and 2018.In 2017, 1,29,032 cases of crimes against children were registered.
Meaning of limitation period
The period within which a person who has a right to make a claim against another person must initiate court proceedings to establish that right is called the limitation period. The expiration of the limitation period may be a defence of the claim. The maximum period prescribed by statute within which legal action can be taken or a right can be enforced is the period of limitation and claims can’t be enforced beyond that period. A statute may, for example, prohibit any person or legal entity from taking action for breach of contract for more than one year after the breach occurred. This is also called the prescription period.
Laws regulating limitation period
Limitation Act 1963
- Section 2(j) “period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act;
- Section 6 states about bar on limitation if person has legal disability
- In case of child, the child is a minor so it is legally disabled from filing case until it turns major
Legal disability – The law relating to persons with a legal disability is explained below:
If a person who is eligible to set up or apply for a suit is a minor, insane, or idiot, the restriction on filing a suit or submitting an application will begin at the end of such disability.
- Section 5 is an exception by which a person can file case without the prescribed limitation period if it satisfies sufficient cause
Bar of limitation
The theory of sufficient cause to solve the delay- Section 5 of the Limitation Act, 1963 allows for the extension of the prescribed period in some cases for reasons sufficient for the delay. This is known as the “sufficient cause” theory. If the appellant is not satisfied with the court, any appeal or application (not plaintiff or suit) may be accepted after a specified period as long as there is sufficient cause. Section 5 applies to appeals or petitions only. As the sections do not apply to suits, the period of limitation allowed in most suits are 3 to 12 years, while in appeals and applications it should not exceed 6 months. Examples of sufficient reasons: What is sufficient cause and what is not can be explained by the following judicial observations:
- The misconduct of the High Court which misled the appellant or his counsel in not submitting the appeal shall be deemed to be sufficient cause under this section.
- In some cases, the council’s error in dealing with the delay may be taken into account, but such an error must be honest. Incorrect advice given by a lawyer can lead to sufficient cause in some cases.
- Legal error in establishing or exercising the right conferred by law may be considered sufficient cause. However, ignorance of the law is not an excuse, and the negligence of the party or the legal adviser is not a sufficient cause.
- Imprisonment of the party or serious illness of the party may be considered as condolence for the delay.
- The time taken to obtain attested copies of the judgment order to be followed on appeal or application was considered for a pardon.
- The unavailability of the case file to the State Councillor Panel Advocate has no basis for indefinite delay.
- The illness of the father caring for the accused is considered to be an adequate and genuine cause.
Criminal Procedure Code 1973
Section 468- Barrier to conducting awareness after the expiration of the limitation period.
(1) No offence under the section specified in subsection (2) shall be considered by any court after the expiration of the term of the limit unless otherwise provided in this Code.
(2) Term of limitation-
(A) Six months, the offence shall be punishable only by a fine:
(B) one year, if the offence is punishable by imprisonment for not more than one year;
(C) If the offence is punishable by imprisonment for a term not exceeding one year but not exceeding three years.
Under Section 468 of the Criminal Procedure Code (CrPC), any offence, including child abuse, is punishable by up to three years in prison within three years of the incident. Section 473– According to the section, an old case will only be considered by the court “in the interest of justice” or “delay in seeking redress” if it is “properly explained”.
Protection of Child From Sexual Abuse Act 2012
- Section 19
The Code of Criminal Procedure, 1973 (2 of 1974) states that any person (including a child) who is aware of the possibility of committing a crime under this Act (including a child) is required to provide such information to:
(a) Special Juvenile Police Unit; Or
(b) the local police.
2) For each report filed under subsection (1)
- an entry number shall be charged and recorded in writing;
- read to the informant;
- the police unit shall record in a book to be kept
(3) Where a child submits a report under subsection (1), it shall be recorded in the plain language under subsection (2) so that the child understands the content being recorded.
(4) If the contents are recorded in a language that the child does not understand or where it is deemed necessary, a translator or an interpreter should provide such qualifications and experience and pay the prescribed fee if the child does not understand it.
(5) If the Special Juvenile Police Unit or the local police are satisfied that a child who has committed a crime is in need of care and protection, arrangements should be made to provide him or her with immediate care within twenty-four hours of the report, including taking him or her into the care of a shelter home or nearest hospital.
(6) The Special Juvenile Police Unit or the local police shall, without undue delay, report the matter to the Child Welfare Committee and the Special Court or Court not appointed by the Special Court within twenty-four hours. Of the session, including the care and protection of the child and the steps taken in this regard.
(7) No person shall be liable, whether civil or criminal, for providing information in good faith for the purpose of the subsection.
This section is for reporting offences and no limitation period is mentioned under the POCSO Act, 2012.
Limitation in case of child abuse
- Claims are barred by the rules for many claimants and therefore cannot be obtained by civil solutions or remedies
- Similarly, the impact of legal limitation periods on claims for child sexual abuse is disproportionate to many other personal injury claims.That is another factor that distinguishes child sexual abuse from other personal injury claims.
- Depression, post-traumatic stress or other mental states are caused by abuse. Controversially, a person is denied opportunity for the court to determine their claim for causal reasons. Misconduct seeking compensation is a serious denial of justice.
- One issue that has caused concern among victims is that there is a time limit to file such claims. When starting a civil claim, there is no time limit for charging a serious person. But the limitation period as mentioned in CrPC and Limitation Act is 3 years.
Removal of limitation in case of child abuse
- In most cases, children are not able to report such crimes because the perpetrators are family members, relatives or close acquaintances. Studies have shown that the effects of child sexual abuse continue until very late in life. To overcome this trauma, many adults began to report the abuse they experienced as children. To deal with child sexual abuse cases, the government introduced the 2012 POCSO Act. This act came into force on Nov 14, 2012
- The law defines any person under the age of 18 as minor and defines various forms of sexual harassment, including intrusion and non-penetration assault, sexual assault and pornography, and treating a sexually abused child as a “mentally ill” or family member, doctor or teacher. , When the child is abused by a person who has faith or authority.
- The POCSO Act does not provide any limits for reporting child sexual offences.
- So, the limitation under CRPC AND Limitation Act should be removed as the POCSO act itself does not prescribe any time limit.
Advantages of removing limitation period
- Often children cannot report such crimes because in most cases the perpetrator is a family member, relative or acquaintance. The post traumatic side effects of sexual abuse are often experienced by these children until the end of their lives. To overcome this trauma and get out of the toxic cycle they were drawn into as kids, many adults try to report the abuse they experienced as children.
- Many children, while facing sexual abuse, may not even understand what is happening with their body, mind at that time .They may not even understand that sexual abuse they are facing is wrong and not a normal situation .So in turn they may not even tell this to anyone at that age .They may understand only after growing up .So removing the time limit to report cases will help to reduce sexual abuse.
Disadvantages of removing limitation period
- If the limitation period for 3 years is not kept, then it will have many adverse effects on the child because as years pass by the child will be more subject to trauma and
- The consequences of abuse can be devastating and doctors have stated the effects of child abuse on the physical, intellectual, mental and behavioural development of children.
- Physical consequences range from minor injuries to serious brain damage to death. Psychological effects ranging from chronic low self-esteem to severe dissociation. The effects of abuse such as attention problems and learning disabilities to severe organic brain syndromes.
- The behaviour of a child, consequences of abuse are from bad peer relationships to abnormally violent behaviours. Thus, the consequences of abuse affect the victims and the community in which they live.
- It may also add more burden to police as it leads to investigating many years old cases.
- The connection between the cause and consequence of child abuse are problematic, as some factors such as low intelligence in children may help to stimulate abusive behaviour on the part of the parent or caregiver, but childhood can be a consequence of low intelligence and early abuse experiences.
Judgments and recent developments
1. October 2018, the Ministry of Women and Child Development Minister: Maneka Gandhi said that the law ministry had approved a proposal by the Ministry of Women and Child Development to remove the time limit for reporting sexual abuse of children. Maneka Gandhi wrote a letter to the Law Minister asking him to remove the time limit for reporting child sexual abuse and allow her to file a complaint after 10-15 years.
2. Mondi Murali case- The girl who was sexually assaulted in the Mondi Murali case committed suicide. As a result, the victim’s father filed a police report against the defendants, including the college principal, for failing to take action against the defendant. In this case, the court dealt extensively with the legal issue: whether the POCSO law would apply after the victim became a major before her unfortunate death? The court, while pronouncing the judgment, accepted a clear interpretation by examining the legal purpose of the legislation and answered in confirmation. The court made it clear those children who have been sexually abused as adults have a legal right to knock on the court door.
3. Vanka case- In the case of Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy, the SC observed that the courts can disregard the delay not only when the facts and circumstances of the case demand, but also when it is necessary to do so in the interests of justice’.
Conclusion
Legal reform related to the removal of the restriction period is not aligned with the legal system of children’s rights. Following the recommendations of the Royal Commission on Institutional Responses to Child Sexual Abuse, all jurisdictions in Australia have successfully waived the 2017-time limit rules for child sexual abuse claims. Similarly, the state of New York has extended the law restricting child sexual abuse, allowing victims to file a claim up to the age of fifty-five. This drive to reform legal responses to child sexual abuse around the world is inevitably significant in the legal system of child rights.
The fact that juvenile victims and their families do not report the crime of sexual abuse in India can be attributed to the fear of social stigma. The progressive approach outlined in the Mondi Murali case will help address the legal limitations of child sexual abuse cases.
References
- https://www.hindustantimes.com/india-news/law-ministry-endorses-removal-of-time-limit-to-report-child-sexual-abuse-maneka-gandhi/story-fxbf78duXiv3d0qQI5OIRJ.html
- https://crlreview.in/removal-limitation-period-child-abuse-cases-interpretation-avoid-absurdity/
- https://indiankanoon.org/doc/1599077/
- https://www.aaptaxlaw.com/pocso-act/19-pocso-act-reporting-of-offences-20-obligation-media-studio-photographic-report-cases-section-19-20-of-pocso-act-2012.html
- https://www.nap.edu/read/2117/chapter/8
- https://www.globalnegotiator.com/international-trade/dictionary/limitation-period/
- https://www.lexisnexis.co.uk/legal/glossary/limitation-period
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