ARGUMENTS ADVANCED

ISSUE 3
THE ACCUSED IS GUILTY OF CAUSING PHYSICAL OR MENTAL
HARM TO HER CHILDREN

1. It is most humbly submitted before this Hon’ble Court that the accused in the instant
case, Ms. Riya Malik is guilty of causing mental or physical harm to her children,
Samir and Arzoo, and must be charged under Sec. 75 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (hereinafter referred to as the ‘Juvenile Justice
Act). The contention will be dealt with in a three-fold manner. Firstly, there is mental
or physical suffering caused to the children by the accused; secondly, unwarranted
situations that could cause mental harm to the children must be avoided; thirdly, the
children could experience the trauma of peer abuse which could have a long-term
effect and affect their social life and their self-esteem.

3.1. INGREDIENTS UNDER SEC. 75 OF THE JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015 ARE SUFFICED.
2. It is most humbly submitted before this Hon’ble Court that Ms. Riya has caused
mental or physical suffering to her children, Samir and Arzoo. Section 75 of the
Juvenile Justice Act reads out as follows:
“Whoever, having the actual charge of, or control over, a child, assaults, abandons,
abuses, exposes or wilfully neglects the child or causes or procures the child to be
assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such
child unnecessary mental or physical suffering, shall be punishable with
imprisonment for a term which may extend to three years or with fine of one lakh
rupees or with both1.
3. In the instant case the accused has abused, exposed, and neglected her children to
cause them unnecessary physical or mental suffering, and thus she must be charged
under Sec. 75 of the Juvenile Justice Act.
1
Juvenile Justice (Care and Protection of Children) Act, 2015, §75, No. 6, Acts of Parliament, 2016 (India).
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3.1.1. Ingredients of Abuse have been met.

4. As per Sec. 75 of the Juvenile Justice Act, whoever assaults, abandons, abuses
exposes or wilfully neglects the child which causes mental and physical suffering
can be charged and punished under this section. 2 In this instant case, the term abuse
is referred to as “child abuse”. This term is applied to the often violent and
inhuman behaviour that an adult shows toward a child. 3 And the form of abuse that
has taken place in the instant case, is a form of emotional or mental abuse.
5. There is no one legal definition of abuse because there are many forms. Emotional
abuse is also known as psychological or mental abuse. This type of abuse involves
exposing an individual to behaviour or language, using verbal-based harassment,
that may result in psychological trauma. In general, emotional abuse occurs in a
situation where there is a power imbalance. It often leads to anxiety, depression, or
other psychological symptoms. Psychological or emotional abuse is, in many cases,
one factor in a situation that is one-sided in terms of power and influence.
6. Additionally, in the instant case Ms, Riya, the accused has used her children’s
innocence to gain views and profit, and, in this manner, she has abused the
innocence of her children by using her power and influence over their children. The
innocence of the children has been exploited based on the trust they have in their
mother. In the case of Jaya Prakash v. State of Rajasthan,4 it was stated that
innocent children, who instinctively trust their elders, are falling prey to the
uncontrolled libido of the adult. The child's faith is betrayed; his life is shattered.
The psychological scars of childhood haunt the person throughout his life. At
times, the abused child becomes a maladjusted citizen. He rebels against authority,
against the States. It is the duty of the State, of the Society, of each of us to protect
and promote the child in his formative years.
7. In the case of Aguilar v. Aguilar5 it was found that the mother engaged in emotional
blackmail of the children because her opposition to the relocation was not
motivated by her concerns for the children’s best interest, but by her own need for
control. So, in the instant case, the mother was using her children for her own
2
Juvenile Justice (Care and Protection of Children) Act, 2015, §75, No. 6, Acts of Parliament, 2016 (India).
3
Child Abuse, Black’s Law Dictionary, 2nd Edition.
4
Jaya Prakash v. State of Rajasthan, RLW 2006 (2) Raj 1548
5
Aguilar v. Aguilar, No. 1 CA-CV 19-0437 FC, 2020 Ariz. App. Unpub. LEXIS 668 (Ct. App. June 18, 2020)

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needs and benefits and emotionally blackmailed her children to get them to do this
act because she has instilled the thought in her children’s minds that drawing on her
bareback is not a wrong act.
8. There is clear evidence that parents can and do influence children. There is equally
clear evidence that children’s genetic makeup affects their behavioral
characteristics, and also influences the way they are treated by their parents. 6 And,
in the case of Sameer and Arzoo, they were acting in the best interests of their
mother because they were emotionally influenced to think that this act was in no
manner wrong or violative of their rights.
9. Furthermore, it is the duty of the mother to protect and promote the children in their
formative years, but she instead contributed to the mental agony of the children by
leading them to believe what she was doing, is the right thing to do, by using the
power of influence, emotionally.
10. Displaying or sending any image including of a child, concerned with any sexual
act through the internet or social media, is a blatant infringement of the right of
children. This is a global reality of the world. Recently, according to a UNICEF
study, most of the time children are forced into these situations due to faked
promises and limited knowledge about the risk posed by these activities. 7 And, in
this case, the children were not aware of the risks posed to them after the video was
to be posted on an online platform. Therefore, as mentioned in issue one, the act
made by the mother is a sexual act and amounts to child pornography, and this
causes mental agony to the children.

3.1.2. Ingredients of Expose and Wilful Neglect are met.

11. Expose and Wilfully Neglect in the context of this section means parents exposing
their children to something harmful or neglecting their duties intentionally. As
mentioned in the fact sheet, Ms. Gehlot’s statement reads as follows; “comments
posted by children studying in the same school as Samir and Arzoo and their
6
Eleonoe E. Maccoby, Parenting and its effects on children: On reading and misreading behaviour genetics,
Vol.51:1-27, Annual Reviews, February 2000.
7
Palak Nigam, CHILD PORNOGRAPHY IN INDIA: A STUDY FROM SOCIO-LEGAL PERSPECTIVES,
Manupatra Articles, July 6th 2022.

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behaviour towards them might create an unbalancing trauma and mental agony in
their life.”8 In the instant case, the accused has exposed her children to the harmful
comments made by their peers and also has wilfully neglected the persona of the
children that could be affected after the comments were to be faced by them, which
would bring down their self-esteem and confidence. The comments made by the
children studying in the same school could amount to a form of bullying which is a
type of violence. And, here the accused has exposed the children to this form of
violence.
12. Exposure to violence can harm a child’s emotional, psychological, and even
physical development. Children exposed to violence are more likely to have
difficulty in school, abuse drugs or alcohol, act aggressively, suffer from
depression or other mental health problems, and engage in criminal behaviour as
adults.9 And, despite being aware of these consequences, as an adult, the accused
has wilfully neglected her duties and carried out an act that would impact the
mental health of her children.
13. In Cundiff v. Swartwood10it was stated that the Respondent, through her lack of
counselling for her mental health issues, exposed her children to harm. In the
instant case, the respondent(accused) was already going through mental issues due
to the acts of domestic violence on her and because of that she completely
blindsided the needs of her children and exposed them to a harmful situation that
could cause mental trauma or harm to them, for her own needs and benefits.
14. Therefore, it is most humbly submitted before the Hon’ble Court that the accused is
guilty of causing mental harm to her children, and must be charged under Sec.75 of
the Juvenile Justice Act.

3.2. UNWARRANTED SITUATIONS THAT CAUSE MENTAL HARM TO

CHILDREN MUST BE AVOIDED.
15. It is most humbly submitted before the Hon’ble Court that the parents must avoid
unwarranted situations that could cause mental harm to their children. And, in the
instant case the accused, Ms. Riya Malik has failed to do so.

8
Moot Proposition, Annexure H, pg.no. 20
9
National Institute of Justice, Children Exposed to Violence, September 21st 2016.
10
In re Cundiff/Swartwood, No. 326674, 2015 Mich. App. LEXIS 2361 (Ct. App. Dec. 15, 2015)

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16. Children need care that promotes positive emotional health and well-being and that
supports their overall mental health, including a positive sense of self, as well as
the ability to cope with stressful situations, temper emotional arousal, overcome
fears, and accept disappointments and frustrations. Parents and other caregivers are
essential resources for children in managing emotional arousal, coping, and
managing behaviour. They serve in this role by providing positive affirmations,
conveying love and respect, and engendering a sense of security. Provision of
support by parents helps minimize the risk of internalizing behaviours, such as
those associated with anxiety and depression, which can impair children's
adjustment and ability to function well at home, at school, and in the community.11
17. Additionally, to respond to the varied needs of their children, parents must develop
both depth and breadth of knowledge, ranging from being aware of developmental
milestones and norms that help in keeping children safe and healthy to
understanding the role of professionals and the social systems.12
18. In the instant case, the accused must have been aware of the social systems of the
society and how they react to acts as such and how this would affect her children,
negatively. The accused must have been aware of the fact that her children can face
harsh comments and there is no stoppage from the kids facing such comments
because, in a society like ours, each person perceives each act differently. Some
interpret it positively and accept it, whereas some individuals, do not accept it
positively, and respond to it harshly or negatively.
19. Therefore, it is most humbly submitted before the Hon’ble Court that this situation
could be completely avoided by the accused based on her intellect as a parent.

3.3. THE CHILDREN COULD EXPERIENCE THE TRAUMA OF PEER ABUSE.

20. It is most humbly submitted to the Hon’ble Court that the comments made by
fellow peers of Sameer and Arzoo could lead them to experience the trauma of peer
abuse.

11
Osofsky JD, Fitzgerald HE. WAIMH Handbook of Infant Mental Health. Vol. 1. Chichester, UK: Wiley;
2000.
12
Winter L, Morawska A, Sanders M. The Knowledge of Effective Parenting Scale (KEPS): A tool for public
health approaches to universal parenting programs. The Journal of Primary Prevention. 2012;33(2-3):85–97

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21. Aversive experiences during childhood and adolescence can have lasting
consequences and contribute to different psychological disorders including
depression and anxiety disorders13
22. It was discovered that victims of peer abuse were at greater risk for psychiatric
disorders in early adulthood when compared to those without a bullying experience
and, they had a greater likelihood of depression, anxiety, panic disorder, and
agoraphobia. After controlling for childhood psychiatric problems and family
hardships, victims were still found to be at risk for anxiety disorders.14
23. In the instant case, we are not aware of how the comments made by the peers of the
children would affect them, but with the support of medical research and studies, it
can be found that there is a large percentage of chance for the children to
experience trauma due to the peer abuse in the form of passing comments, which
could affect the children in the long term and their adult years, negatively.

13
Schneider R, Cronkite R, Timko C. Lifetime physical and sexual abuse and substance use treatment outcomes
in men. J Subst Abuse Treat (2008) 35(4):353–61 10.1016/j.jsat.2008.01.001
14
Copeland, W., Wolke, D., Angold, A., & Costello, E. (2013). Adult psychiatric outcomes of bullying and
being bullied by peers in childhood and adolescence. JAMA Psychiatry, 70(4), 419-419.