Father exposing private parts, showing child sex scenes is sexual harassment under POCSO: Uttarakhand High Court

A father exposing his private parts to his child and showing sex films to him constitutes an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Uttarakhand High Court recently observed. .Single-judge Justice Ravindra Maithani, therefore, upheld an order of trial court summoning petitioner-father to face charges under Sections 11(entices a child for pornographic purposes) and 12 (sexual harassment) of the POCSO Act for allegedly sexually harassing his son."The child has also been examined under Section 164 of the Code. The child has stated that his father does Gandi Gandi Cheeze. He would show dirty videos. Here intent can be presumed under Section 30 of the POCSO Act. Exhibition of private part to a child, showing him dirty films, as told by the child himself prima facie makes out an offence under Section 11 read with Section 12 of the POCSO Act," the Court held.The Court also upheld the family court's order directing him to pay ₹25,000 per month to his wife and ₹20,000 per month to his son as maintenance under Section 125 Code of Criminal Procedure (CrPC)..The case against the man was filed by his wife (respondent no. 2), whom he had married in December 2010. She alleged that her husband repeatedly engaged in anal intercourse against her will, causing severe injuries and bleeding that required treatment at several hospitals.Despite her injuries, the petitioner persisted in his actions which included physical assaults and coerced sexual acts.The woman also alleged that the husband subjected their child, aged 8 to 10 months, to inappropriate behaviour by showing explicit content on his laptop so that the wife would succumb to his demands for anal sexIt was also alleged he would throw things around, urinate in the room, expose his private parts to the young child and have oral sex forcibly in front of the child. The man moved High Court challenging the first information report and summoning orders..The petitioner's counsel argued that the act allegedly committed by the petitioner had no sexual intent with respect to the child.It was argued that the intention behind showing explicit content on the laptop was not to sexually harass the child but was to pressure the child's mother into complying with the petitioner's demands. Therefore, it was submitted that no offence was made out under the POCSO Act.The Court observed that the child, during examination, admitted that his father engaged in inappropriate behavior (gandi gandi cheezein) and showed dirty videos to him.Therefore, it refused to interfere with the summoning order with respect to offences under the POCSO Act..Another issue addressed by the court was whether a husband can be prosecuted under Section 377 (unnatural offences) Indian Penal Code (IPC) for engaging in anal sex with his wife.The Court relied on Madhya Pradesh High Court judgment in Umang Singhar v. State case wherein it was held that,"In view of amended definition of Section 375 IPC, offence under Section 377 IPC between husband and wife has no place and, as such it is not made out.”.The petitioner's counsel referred to the Supreme Court judgment in the case of Navtej Singh Johar to argue that acts of carnal intercourse against the order of nature and terms like unnatural sex are not legally defined. The petitioner contended that if two consenting adults engage in such acts privately, no offence is made out.It was further submitted that if the wife refuses to engage in intercourse for an extended period, this unilateral decision would constitute mental cruelty against the husband..The Court agreed with the husband's argument that a man and a woman indulging in anal sex with their free consent in private is no offence under Section 377 IPC.In the case of a husband and wife both of whom are adults, the consent is informed and explicit. Therefore, no further consent is required and no offence under Section 377 IPC is made out and such an act is exempt under exception 2 to Section 375 IPC, the Court said.Hence, it modified the summoning order and upheld the order only with respect to POCSO while setting aside the order for offence under Section 377 of IPC. "In view of the foregoing discussion, this Court is of the view that the impugned summoning order requires interference to the extent that no offence under Section 377 IPC is made out against the revisionist," it noted while partially allowing the man's plea.The trial of the man shall proceed under Section 11 read with Section 12 of the POCSO Act, the Court directed..The petitioner was represented by advocate Aditya Singh.Advocates Saurabh Pandey and Navneet Kaushik appeared for respondents..[Read Orders]