INTERNSHIP REPORT

COURT DIARY

NAME: RIYA
ENROLLMENT NUMBER: 21817703819
SEMESTER AND SECTION: V-E
COURSE: (INTEGRATED) B.A. LL.B.

NAME OF THE ADVOCATE/LAW FIRM: ANKIT KHATRI & ASSOCIATES

SUBMITTED FOR: COMPREHENSIVE VIVA & SUMMER INTERNSHIP
ASSESSMENT
SUBJECT CODE: LLB 351

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
DECEMBER , 2021

1
Internship Certificate

2
UNDERTAKING

This is to certify that I, RIYA enrollment no. 21817703819, have completed the
“Internship Report” work under the guidance of MR. ANKIT KHATRI for the partial
fulfillment of the requirement for the degree of BA.LLB (Hons.). This is an original
piece of work and the same has not been submitted earlier to any other Institute for
the award of any other degree. Internship report was made and the suggestions as
approved by faculty were duly incorporated.

DATE:28.11.2021
SIGNATURE OF STUDENT
RIYA

Certified that the internship report submitted in partial fulfillment of B.A LLB (H) to
be awarded by GGSIP University, Delhi by RIYA , 21817703819 has been completed
under my guidance and is satisfactory.

DATE: SIGNATURE OF SUPERVISOR

MR. ANKIT KHATRI

3
 DECLARATION

This to certify that RIYA , Pursuing BA-LLB (H) from Vivekananda Institute Of
Professional Studies affiliated to Guru Gobind Singh Indraprastha University
confirms that this work submitted for assessment is my own and is expressed in my
own words. Any uses made within this work of any other author in any form are
properly acknowledged at the point of their use. A full list of the references employed
has been included.

RIYA

4
CERTIFICATION

This is to certify that this report is an authentic work written by MS. RIYA,
Enrollment no. 21817703819, and a bona fide student of VIVEKANANDA
INSTITUTE OF PROFESSIONAL STUDIES. Her work has not received any
previous academic credit at this or any other intention.

SIGNATURE
MR. ANKIT KHATRI
ADVOCATE

5
ACKNOWLEDGEMENT

It is my privilege to carry out this research under the guidance of MR. ANKIT
KHATRI (ADVOCATE) . I convey my deep sense of gratitude for his continuous
support, encouragement and guidance during the course of this study and in the
preparation of the manuscript of this research. I am thankful for his insightful
suggestions and continuous guidance.

I am also grateful to My parents for providing continuous support, guidance and

valuable suggestions during the course of preparation for this research work.

I would like to express appreciation to the entire faculty members for their continuous
support.

I am also thankful to the librarians and the staff of various librarian particularly law
libraries of VIPS , G.G.S.I.P. University, New Delhi, Rohini Court, Tis Hazari Court
for their assistance rendered to locate the material for my present research work.

RIYA

6
List of Research Work:

1. LEGAL RESEARCH ON THE TOPIC MUTATION OF PROPERTY

UNDER INHERITANCE

2. JUDGMENT ANALYSIS ON BALWANT SINGH VS STATE OF PUNJAB

ON 11 NOVEMBER, 1975 WITH RESEARCH WORK ON LINE/ISSUE

3. LEGAL RESEARCH ON THE PROTECTION OF CHILDREN FROM

SEXUAL OFFENSES ACT 2012 (POCSO)

4. LEGAL RESEARCH ON LATEST LAWS ON SECTION 406 AND 498A

OF INDIAN PENAL CODE,1860

5. LEGAL RESEARCH ON STATUS OF MARRIAGE IF GIRL IS A

MINORAND LAWS ON BIGAMY IN INDIA

7
PREFACE

Life is a long journey, where each one of us crosses a number of milestones. Every
stoppage teaches us a lot. I being a student of law learnt a plethora of things and was
being bombarded with lots of learning, research work, practical aspects, and day to
day dealing.
During these past two years I have helped in lots of learning. Such has been the
presentations and assignments which enhanced our learning by adding on to enhance
our legal skills.
It was a lifetime experience for which I thank to the entire advocates of the chamber
in which I did my training, my parents, faculty member of VIVEKANANDA
INSTITUTE OF PROFESSIONAL STUDIES affiliated to (GGSIPU).

8
INDEX:
S.N0. DATE NAME OF RESEARCH PAGE NO.
1. 02/08/2021 MUTATION OF PROPERTY UNDER 10- 14
INHERITANCE

2. 06/08/2021 JUDGMENT ANALYSIS ON 15- 20

BALWANT SINGH VS STATE OF
PUNJAB ON 11 NOVEMBER, 1975

3. 13/08/2021 21- 36
THE PROTECTION OF CHILDREN FROM
SEXUAL OFFENSES ACT 2012 (POCSO)

4. 23/08/2021 LATEST LAWS ON SECTION 406 AND 37- 40

498A OF INDIAN PENAL CODE,1860

5. 26/08/2021 STATUS OF MARRIAGE IF GIRL IS A 41- 43

MINOR AND LAWS ON BIGAMY IN
INDIA

6. 30/08/2021 DIARY OF DAILY WORK IN FIRM 44

7. 31/08/2021 CONCLUSION 45

8. 31/08/2021 BIBLIOGRAPHY 46

9
Research Work
Research-1
Date on which it is assigned: 02 August 2021
Is it continuing work: Yes
If Yes, from which date: 02.08.2021- 05.08.2021
Tools used in Research: SCC ONLINE, JSTOR, Westlaw.com,
BLOG.IPLEADERS.IN, WWW.INDIAN KANOON.COM

MUTATION OF PROPERTY UNDER INHERITANCE

INTRODUCTION:
Mutation of property by inheritance refers to the change of ownership or transfer of
property by inheritance. Inheritance is the practice of transferring property, titles,
debts, rights, and obligations to the legal heir of a person upon the death of that person
either by way of ‘Will’ or through the prevalent laws of succession. There are
different regulatory laws of inheritance among societies as per their religion and have
revolved over time.
LEGAL PROVISIONS:
The laws of inheritance in India are applicable based on types of succession and
religion which include:
• The Hindu Succession Act, 1956/ 2005 – The law of Succession applies on
succession without a will i.e. intestate succession among Hindus which is also
applicable to Sikhs, Jains and Buddhists.
• The Indian Succession Act, 1925 – This Succession law is applicable on transfer of
property of Hindu’s by a ‘Will’ i.e. a testamentary succession. This law allows any
individual to transfer his own property to any individual he wants legally by getting a
‘Will’ drafted.
• The Registration Act, 1908 – This registration law is applicable on registration of
will made/drafted by an individual.
CIRCUMSTANCES:
Legal formalities to get the property transferred may differ depending upon the nature
of the property, legal heirs’ rights over the property, the number of legal heirs and
many others etc.
And with changing scenarios we can see a large no. of cases regarding mutation.

10
1. In the case of Ram Avtar And Ors vs Ishwar And Ors on 5 March, 2019 It was
pleaded that the suit property belonged to Neki Ram son of Shiv Lal as karta of the
Hindu undivided family comprising of Neki Ram 1 of 7 and his three sons i.e. Hari
Singh (father of defendants No. 1 to 4), Sat Narain (father of plaintiff no. 1), and
Same Ram (father of plaintiffs No. 2 to 7 and husband of plaintiff No. 8). It is averred
in the plaint that maternal grandfather of Hari Singh, Sat Narain and Same Ram,
namely Gokal son of Udmi, had no son. Therefore, he adopted Hari Singh with the
consent of Neki Ram and his wife Smt. Dakhan. Adoption deed dated 28.04.1943 was
executed and registered on 01.05.1943. Therefore, after his adoption, Hari Singh had
no concern with the property of his natural father Neki Ram as he had succeeded to
the estate left by his adopted father Gokal. Furthermore, Sat Narain and Hari Singh,
predecessor-in-interest of the plaintiffs, were claimed to be in cultivating possession
of the suit property even during the time of Neki Ram. After Neki Ram's death, Sat
Narain and Hari Singh continued to be in exclusive possession of the suit property and
thereafter the plaintiffs claimed to be in possession of the suit property. Mutation of
inheritance of Neki Ram was, however, wrongly sanctioned in favour of Sat Narain,
Same Ram and Hari Singh in equal shares i.e. 1/3rd share each. Revenue entries
continued in the joint names of all the three. The defendants started interfering in the
possession of the plaintiffs on the basis of revenue entries. They did not desist despite
request. Hence, the suit was filed. Suit was resisted by the defendants, who admitted
that Neki Ram was the owner in possession of the suit property but denied that the
Neki Ram was karta of any Hindu undivided family. It is further stated that Neki Ram
was the absolute owner of the suit property. It is admitted that Hari Singh father of the
defendants was adopted by his maternal grand father Gokal but the said adoption was
invalid as Gokal could not have adopted his daughter's son under the customary law.
It is further stated that 2 of 7 adoption of Hari Singh by Gokal was challenged by
collateral of Gokal through Civil Suit bearing No. 286 of 1947 titled as 'Hari Ram etc.
versus Gokal' and in the said civil suit adoption of Hari Ram by Gokal was held to be
illegal, null and void being against the customary law vide judgment and decree dated
22.04.1988 passed by the then learned Senior Sub Judge, Rohtak. The said judgment
and decree was upheld in appeal by the learned Additional District Judge vide
judgment and decree dated 28.07.1950. Pursuant to the said judgment and decrees,
Hari Singh had severed all his ties with Gokal and had started residing with his
natural parents. Hari Singh it is claimed, cultivated the suit property alongwith his

11
father and after the death of Neki Ram, Hari Singh alongwith his brother Sat Narain
and Same Ram inherited the suit property in equal shares. Mutation of inheritance was
accordingly, sanctioned. Subsequently, by way of a mutual settlement all of them
started the cultivating the suit property separately. It is further stated that Sat Narain
and his son Ram Avtar i.e. plaintiff No. 1 sold their share in the suit property and at
that time they had specifically stated their share in the property to be 1/3rd only. A
suit for partition was also filed by the plaintiffs against the defendants which was
dismissed. Inheritance of Neki Ram was sanctioned in the year 1950, therefore, it was
stated that the plaintiffs had no right to challenge the same. Defendants claimed to be
lawful owners in possession of the suit property. Dismissal of the suit was prayed for.

2. In the case of Smt. Chhoti Devi vs The Financial Commissioner And ... on 31
March, 2003 Holding that mutation order was null and void, learned Appellate
Authority observed as under: "I have heard the arguments and gone through the
contents of appeal, applications written arguments and citations of law. I find that the
appellants are the only legal heir of Sh. Sardar Singh, deceased and are entitled to
inherit the property and mutation should have been sanctioned in their favor only.
Moreover, on the basis of registered will executed in favor of appellants, the
appellants are the only legal heir. Hence by no way, the respondent is entitled for
mutation. The mutation sanctioned in favor of respondent is void and does not deserve
any sanctity in the eyes of law. As per provisions of Section 48 of the Act, the
mutation can not be sanctioned on the basis of succession in presence of Will.
As regards the contention of respondent that the appellants did not make objection
earlier and therefore they are stopped does not deserve any merit as the appellants
were not aware of the Will which is a secret document. Moreover, the appellants were
also not aware of the legal position. Merely presence during the proceedings without
knowing legal position cannot be treated as admission and the appellants are not
bound by the same. Punjab & Haryana High Court in CWP.No.5057/88 dated 1-11-
88, Indian Oil Corporation v/s. Municipality Thanswar held that admission by a
citizen in ignorance of his legal rights cannot bind the maker of admission.
Consequently the principles of Estoppel does not apply on the appellants. Considering
all these facts, I find that the impugned order is void and does not deserve any merit.
Consequently, I accept the appeal, set aside the impugned order and sanction mutation
in favor of the appellants."

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3. In the case of Smt. Kasturi Devi vs Deputy Director Of Consolidation ... on 4
November, 1976 The Judgment of the Court was delivered by FAZAL ALI, J.---This
appeal by special leave involves a pure question of law regarding inheritance to the
property of one Karua. Briefly put, the case of the appellant was that the disputed
Khata was recorded in the name of Karua the son of Madhua who died leaving behind
his widow Kasturi and his son Karua. He had two brothers Khushi Ram and Lekhraj
who claimed to be the next reversioners. It is obvious that on the death of Madhua,
Kasturi as the widow got half share in the property and the other half went to Karua.
The dispute seems to have arisen on the death of Karua when two rival claims were
put forward, one by Kasturi who contended that she was entitled to inherit as mother
of Karua, whereas Khushi Ram averred that as Kasturi had married Lekhraj she
should be divested of her interest and excluded from inheritance as a result of which
the property would pass on to Khushi Ram and Lekhraj in equal shares as next
reversioners. The appellant also denied the fact that Kasturi had remarried Lekhraj.
The first Court of the Consolidation Officer negatived the claim of Kasturi and
directed mutation to be made in the name of Khushi Ram under the provisions of the
U.P. Consolidation of Holdings Act. The present appellant filed an appeal before the
Settlement Officer, Etah Camp, at Aligrah, against the decision of the Consolidation
Officer who reversed the finding of the Consolidation Officer and held that as the re-
marriage of Kasturi with Lekhraj had not been proved, the appellant Kasturi was
entitled to be recorded in the revenue papers. Against this decision there was a
revision by Khushi Ram before the Deputy Director of Consolidation who set aside
the order of the Settlement Officer and restored that of the Consolidation Officer. The
Deputy Direct or of Consolidation held that there was abundant evidence to prove that
Kasturi had re-married Lekhraj and therefore, in law she would be excluded from
inheriting the property and was not entitled to be mutated in respect of the Khata in
question. The appellant thereupon unsuccessfully filed a writ petition before the High
Court and hence this appeal before this Court.

DOCUMENTATION REQUIRED In the case of inherited property, the following

documents must be produced:
• A copy of will or succession certificate or death certificate of the owner.
• An indemnity bond on stamp paper of requisite value (Rs 100 in Delhi)

13
• An affidavit on stamp paper of requisite value (Rs 10 in Delhi), attested by the
notary.
• The latest receipt of property tax payment.

14
Research-2
Date on which it is assigned: 06 August 2021
Is it continuing work: Yes
If Yes, from which date: 06.08.2021- 13.08.2021
Tools used in Research: SCC online, JSTOR, Westlaw.com

JUDGMENT ANALYSIS WITH RESEARCH WORK ON

LINE/ISSUE

JUDGMENT: BALWANT SINGH VS STATE OF PUNJAB

ON 11 NOVEMBER, 1975

BACKGROUND OF THE ISSUE:

Punishment has been the most important and common measure to maintain law and
order in the society. It has been prevailed most important feature of criminal law.
Most severe and deadly punishment among all other punishments is capital
punishment. This type of punishment prevailed since ages to maintain law and order
in the society. However, the concept of alternate form of punishment is the hot topic
for many scholars and jurists due to evolution of the society in terms of its thinking,
standard of living, religion, science, technology, trade, commerce, human rights, etc.
Therefore, Punishment must be given depending on understanding of the cases, its
severity, and after effects of the death penalty. According to Section 354 (3) of the
new Code, i.e. Cr.P.C.1973 an offence, where the conviction is punishable with
capital punishment, or an alternate, life imprisonment or imprisonment which may be
for a term, judgement has to mention the reasons for awarded punishment. By the
introduction of Section 354(3) of the Code of Criminal Procedure 1973, the normal
sentence is the lesser sentence of imprisonment for life and if the sentence of death is
to be awarded, special reasons will have to be recorded. In other words, the court,
before imposing a sentence of death, should be satisfied that the offence is of such a
nature that the extreme penalty is called for. However, no light has been thrown on
what could be the special reasons. The interpretation of Section 354(3) came up for
consideration for the first time in Balwant Singh v. State of Punjab.

15
ISSUES:

1. Whether the accused should be punished with capital punishment or lesser

punishment according to the new code?

2. Whether the amended code of criminal procedure 1973 was relied?

FACTS IN BRIEF:

Balwant Singh (appellant) was working as a Granthi of a Gurudwara in village

Salihna District Faridkot. Mohan Singh the deceased was a member of the Managing
Committee of the Gurudwara. He made certain complaints against the appellant to the
President of the Managing Committee and asked for his removal from the post of
Granthi. The appellant, therefore, bore a grudge against the deceased. Within the early
hours of April 13, 1974, the appellant gave Karah Parshad of Adi Granth to Mohan
Singh mixing opium in it. As soon as Mohan Singh took the Parshad, he felt sick and
his heart began to sink. In spite of the medical care he couldn’t survive and died about
4 hours after administering of the poison to him by the appellant. On the facts found
by the learned Sessions Judge and as affirmed by the supreme court, the appellant was
convicted under section 302 of the legal code. The question for consideration is
whether or not the sentence of death was rightly passed. It is going to be noticed that
the occurrence happened on April 13, 1974 after the Criminal Procedure Code, 1973
came into force and from April 1, 1974 provisions of Section 354(3) of the new Code,
as noticed by the High Court, governed this case. Yet the supreme court confirmed the
sentence of death relying upon two decisions of this Court which weren’t concerned
with the appliance of law engrafted in section 354(3) of the Code of Criminal
Procedure, 1973 but given with regard to the Code of Criminal Procedure Code, 1898
because it stood as such at the relevant time.

RATIO DECIDENDI:

Under the Code of Criminal Procedure, 1898 as it stood before its amendment by Act
26 of 1955, sub-section (5) of Section 367 requires: “If the accused is convicted of an
offence punishable with death, and therefore the Court sentences him to any
punishment aside from death, the Court shall in its judgment state the rationale why
sentence of death wasn’t passed :”

16
Under the provision aforesaid if an accused was convicted for an offence punishable
with death then imposition of death sentence was the rule and awarding of a lesser
sentence was an exception and therefore the Court had to state the explanations for
not passing the sentence of death. By the Amending Act 26 of 1955 the said provision
was deleted. Thereafter it had been left to the discretion of the Court, on the facts of
every case, to pass the sentence of death or to award the lesser sentence, within the
context of the changed law if during a given case the passing of the death sentence
wasn’t necessary or there have been justifying circumstances to sustain the passing of
the lesser sentence then the lesser sentence had to be awarded and not the capital
punishment.

JUDGMENT ANALYSIS:

Before the amendment of Section 367(5) of the Code of Criminal Procedure by the
Criminal Procedure Code (Amendment) Act 1955 (Act 26 of 1955) was introduced,
the normal sentence for an offence of murder was death and the lesser sentence was
the exception. After the introduction of the amendment it was not obligatory for the
court to state the reasons as to why the sentence of death was not passed.

By the amendment the discretion of the court in deciding whether to impose a

sentence of death or imprisonment for life became wider. The court was bound to
exercise its judicial discretion in awarding one or the other of the sentences. By the
introduction of Section 354(3) of the Code of Criminal Procedure 1973, the normal
sentence is the lesser sentence of imprisonment for life and if the sentence of death is
to be awarded, special reasons will have to be recorded. In other words, the court,
before imposing a sentence of death, should be satisfied that the offence is of such a
nature that the extreme penalty is called for.

In a number of decisions, this court has reiterated the position that under section
354(3) of the 1973 Code, the court is required to state the reasons for the sentence
awarded and in the case of sentence of death special reasons are required to be stated.
Balwant Singh v. State of Punjab [1976] 2-S.C.R. 684

NEW DEVELOPMENTS:

17
The first notable challenge to the death penalty on grounds of constitutionality came
up in the case of Jagmohan Singh v State of Uttar Pradesh. In this case, one of the
arguments was that Section 302 (includes ‘death’ as punishment) of the Indian Penal
Code granted uncontrolled discretion to the judiciary and hence rendered the
provision unconstitutional. However, the same argument was rejected by the
Constitutional Bench of the Court. It was held that the legislature had granted ‘wide
discretion’ to the judiciary, recognizing that it is impossible to lay down
comprehensive guidelines for the exercise of such discretion and that judges had been
using this discretion since the inception of IPC on the basis of “well-recognized
principles”.

The court also referred to certain judgements which mentioned that this judicial
discretion was not arbitrary in nature as each case was unique and an argument based
on discrimination could not be accepted. Another reason that the court gave was the
confidence to be reposed in the availability of appellate review. It noted that if a
subordinate court made an error, then the higher could always rectify the same error,
in the appeal process.

The next challenge to this ‘discretion’ came up in the case of Rajendra Prasad v.
State of Uttar Pradesh. The court, in this case, held that in the absence of principles,
the capital sentencing discretion of courts would be unconstitutional. The court also
challenged the use of the phrase “well-recognized principles” in the Jagmohan case by
questioning the vagueness relating to it as the judges would differ on what these
principles are. It was held that it would be ‘dangerous’ to use those words unless a
specific meaning was assigned to them. However, this judgment could not overrule
the Jagmohan judgment because it was delivered by a three-judge bench and
Jagmohan was a constitutional bench.

Between these 2 judgments, a major development took place. A new Code of

Criminal Procedure (1973) was introduced by replacing the 1898 Code. While the
1898 Code considered the death penalty as the rule and life imprisonment as the
exception, the 1973 Code considered life imprisonment as the rule and death penalty
as an exception. Hence, now the court required to provide ‘special reasons’ to justify
the death sentence. However, the ‘special reasons’ were not defined in any manner

18
and the judges had wide discretion in deciding the meaning of this phrase. This was
the basis of challenge in Rajendra case.

Finally, in the case of Bachan Singh v State of Punjab, the current law of the land
was laid down. The constitutionality of the death penalty was upheld in this case. The
court had to respond to the opinion given in the Rajendra Prasad case that there was
no defined meaning of “well-recognized principles”. It held that the “well-recognized
principles” would fall within the ‘special reasons’ for the purposes of Section 354(3)
of the Code of Criminal Procedure.

Regarding the discretion factor in the sentencing, the court said that the standardising
of the discretion policy is in the hands of the legislature and it is up to the legislature
to come up with guidelines on the same. Therefore, there was no certainty in this
aspect. Although the court came up with the ‘rarest of the rare’ doctrine (death
penalty to be given in most aggravated circumstances), there was no clarity on the
discretion factor.

It is important to note that in this case, Justice Bhagwati gave a dissenting opinion.
According to his opinion, if a rule or a norm is not within the contemplation of the
legislature, then it has to follow the general practice. The general practice is that the
Court tests the constitutionality of an action based on whether the legislature lays
down any guidelines for the same. If not, then the same action is unconstitutional.
Following the same logic, Section 302 IPC, does not give any discerning policy for
the sentencing discretion and therefore, should be unconstitutional. Moreover, the
term ‘special reasons’ is so open-ended that there are no objective criteria and it is
completely left to the subjective assessment given by judges.

CONCLUSION:

It is a worthwhile note that, there can be errors on part of High Court, which be
rectified by Supreme Court. Like-wise in this case, where High Court relied upon its
two old judgment, overlooking the principles of new code which was in place from
April 1, 1974, but passed judgment on principles of old code from January 1, 1956

19
wherein absence or in extenuating circumstance such order would have stood
constitutionally valid.

The Supreme Court mentioned that there were no special reasons recorded by High
Court while confirming death sentence and allowed appeal against death sentence and
on justifiable grounds changed it to imprisonment for life.

Capital punishment has never been a boon to any society, but can set an example in
cruellest of cases and can upheld the faith in law amongst the people.

20
Research-3
Date on which it is assigned: 13th August 2021
Is it continuing work: Yes
If Yes, from which date: 13.08.2021- 22.08.2021
1. Tools used in Research: BLOG.IPLEADERS.IN,
WCD.NIC.IN ,WWW.INDIAN KANOON.COM, WWW.SCCONLINE.COM

THE PROTECTION OF CHILDREN FROM SEXUAL

OFFENSES ACT 2012 (POCSO)

INTRODUCTION:

The Protection of Children from Sexual Offenses Act (POCSO) came into force on
November 14, 2012, and was specifically formulated to deal with offences including
child sexual abuse and child pornography. The Act through its 46 provisions
increased the scope of reporting offences against children, which were not earlier
covered under the Indian Penal Code (IPC). This expanded the criminal penalty for
aggravated penetrative sexual assault to include punishment for abuse by a person in
position of trust or authority including public servants, police, armed forces, and
management or staff of an educational or religious institution.

It also defined the procedure for reporting cases, including a provision for punishment
for failure to report a case or false complaint. It provided procedures for recording of
the statement of a child by the police and court, specifically requiring that it should be
done in a child-friendly manner, and by the establishing special courts.

The POCSO Act defines offences of sexual assault, sexual harassment, pornography
and safeguarding the interest and well-being of children. It also sets out a child-
friendly procedure regarding the recording of evidence, investigation and trial of
offences, establishment of special courts and speedy trial of cases. The aim of the act
is to provide protection to the child at every stage of judicial process.

FEATURES OF POCSO:

21
POCSO is gender neutral, meaning that crimes of this nature committed against
children will be handled by this act regardless of the gender of the child. This Act sets
a burden of proof of “guilty until proven innocent” rather than the general rule of
“innocent until proven guilty.” Simultaneously, in order to prevent misuse of the law,
the law contains punishments for false complaints and false information with
malicious intent. The recording of abuse is mandatory under this Act. It is mandatory
for the police to register a First Information Report (FIR) in all cases of child abuse. A
child’s statement can be recorded at the child’s residence or a place of their choice
and should be preferably done by a female police officer not below the rank of sub-
inspector. This act lists all possible sexual offences against children including various
types of sexual assault, sexual harassment, use of minors for pornographic purposes.
The Act additionally prescribes punishments for attempted crimes under this act as
well as aiding-and-abetting these crimes or failure to report these crimes. If there is
any suspicion that an offence should be reported, the Act advises reporting because
failure to report alone may result in up to 6 months of imprisonment and/or fines.

The Act also prescribes for special courts to be created to handle these trials, each of
which should be completed within one year. The Act requires that the minor is not
exposed in any way to the accused during the recording of evidence and their identity
is not disclosed at any time during the investigation or trial. The minor is not made to
repeat their testimony in court, and they may give the testimony using a video stream
instead. The defense asks all questions through the judge and is not allowed to ask
them in an aggressive manner. An interpreter, translator, special educator or any other
expert may be present in court for the minor’s assistance. There is also defined criteria
for awarding compensation by the Special Court which includes: loss of educational
and employment opportunities along with disability, disease or pregnancy as the
consequence of the abuse.

The POCSO Act has also changed consensual sex under the Indian Penal Code. The
age of consent has been raised from 16 years of age to 18 years of age. This means
that any person (including a child) can be prosecuted for engaging in a sexual act with
a child irrespective of whether the latter consented. Additionally, A husband/wife can
be prosecuted for engaging in a sexual act with their spouse under 18 years of age.

22
The POCSO Act, 2012 does not recognize consensual sexual acts among children or
between a child and an adult.

MOST USED PROVISIONS OF THE ACT

1. Penetrative sexual assault

The penetration can either be penile-vaginal, penile-oral, penile-urethral or

penile-anal, or object penetration. Section 4 of the act provides for punishment
not less than 7 years which may extent to life imprisonment and a fine.

2. Aggravated penetrative sexual assault committed by a person of trust or authority

Section 6 of the act lays down the punishment which should not less than 10
years; it may also extend to rigorous life imprisonment, and a fine.

3. Non-penetrative sexual assault committed with a sexual intent

Non penetrative sexual assault includes touching the vagina, penis, anus or
breast of the child or asking the child to touch the vagina, penis, anus or breast
of the perpetrator or any other person or any other act done with sexual
intention. In such cases, Section 10 provides for punishment for not less than 3
years which may extend to 5 years and a fine.

4. Aggravated non-penetrative sexual assault done by a person of trust and authority

Section 10 lays down the punishment which should not be less than 5 years
and it may also extend to 7 years, and a fine (Section 10).

5. Sexual harassment

Sexual harassment is caused by indecent and sexually explicit remarks, emails

or telephone calls; taunting, jeering, or posing a request for sexual favour. The
punishment is 3 years and a fine (Section 12).

23
6. Using a minor for pornographic purposes

It includes producing or distributing any pornographic content via print or

electronically. The punishment is 5 years and a fine and in case of second
conviction, the punishment would be 7 years and a fine (Section 14 (1))

7. Attempt of offence

Section 18 of the act provides for 1 year punishment and fine.

8. Abetment

The definition of abetment is same as defied under Section 107 and 108 of the
IPC. The punishment is same as that of the offence which is provided under
Section 17 of the act.

9. Failure to report an offence

The punishment is six months and a fine provided under Section 21 of the act.

ANALYSIS OF JUDICIAL PRONOUNCEMENTS

Pre POCSO, 2012

Sakshi v UOI:

This was the case filed by an NGO called ‘Sakshi’ raising concern about the dramatic
increase of sexual violence against women and children and the implementation of the
provisions of IPC namely 377, 375/376 and 354. The petitioners raised the problem of
confining rape cases only to penile-vaginal penetration which has now been amended
by the 2013 Criminal Law amendment as it was violative of Article 21 of the
Constitution. A number of statistical data has revealed that children are often abused
in manner other than the penile/ vaginal penetration. It is often by means of
penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/
vaginal penetration. Also, putting these cases within the ambit of Section 377 would

24
be highly unjust. Petitioners had put emphasis on Article 15 (3) of the Constitution
which provides for special provisions for women and children which necessarily
implies ‘adequate provisions’.

Bachpan Bachao Andolan v UOI, AIR 2011 SC 3361:

A PIL was filed in the Supreme Court on the wake of serious violations of child
rights. The petition was filed specifically to discourage child trafficking from circuses
all over India. Children are very frequently sexually abused at these places, which is a
violation of Juvenile Justice Act and other international treaties and covenants.

After POCSO:

POSCO, 2012 was implemented to make it easier for the victims of sexual abuse to
get justice. The Act directs the use of more humane ways to deal with victims and
prohibit victimization of the child at the hands of the judicial system. Because of
which, the reporting of such cases has doubled due to increased awareness.

Nishu v Commissioner of Police, 2014(3) ACR2516 (SC)

Petitioner was a minor girl, kidnapped and repeatedly raped by a group of nine
people. One among the nine people was a police constable in Haryana Police. The
prosecution failed to present any medical reports or a copy of the FIR under Section
376D of the IPC and relevant provisions of the POSCO, Act. The Court in this case
said that it would be inappropriate to exercise its jurisdiction under Article 32 as the
case has been investigated by the Haryana Police.

Avinash Shetty v State of Karnataka, 2004 (13) SCC 375

The appellant kidnapped the victim and had multiple sexual intercourses with her. A
charge sheet was filed against the victim under Section 366 of the IPC and Section 4
of the POCSO, Act. The honorable High Court emphasized on the age of victim as it
is the major deciding factor and the court set aside the conviction in support of getting
reliable evidence and disposing the case in accordance with law. The courts have
showed an inclination towards giving maximum punishment to the convicts under

25
Section 12 of the POCSO Act, 2012 to give strong message to society because crimes
of child sexual abuse are on continuous increase. However that is possible only when
reliable evidences without any distortion are presented by the Police and the medical
experts. In a case before the Delhi district court where the accused was charged with
Section 8, 12 and 11 of the POCSO Act and Section 506 of the IPC for misbehaving
with the victim, the court said though proper evidences are not disclosed by the
investigative agency, the testimony of the child victim inspired trust and confidence.

In another case, a girl was abused by her father since she was 12 years of age. The
court acknowledged that the investigation was done in a most casual and irresponsible
even though the girl was abused for around five years. The court refused to proceed
with the matter until further examination is done by the investigation agency and the
Police since the medical report and the charge sheet had numerous loopholes. This is
a classic case where the victim became more vulnerable because of the inadequacy of
investigative agency and the police and the matter was delayed.

LOOPHOLES IN THE ACT:

Upon a preliminary reading the POCSO Act may qualify as the ideal legislation to
protect children from sexual offences. However, there are certain conceptual problems
in it.

The Act does not leave any possibility of consent given by persons under 18. This
would mean that if a seventeen year old boy or girl had a nineteen year old sexual
partner, the partner would be liable to be booked under the provisions of the POCSO
Act. The Act also does not provide any clarity on what happens when two minors
engage in any kind of sexual activity. Technically, they are both Children in Need of
Care and Protection (CNCP) and Children in Conflict with Law (CCLs). In practice
though, the police declare girls to be CNCPs and the boys to be CCLs.

Another problem faced by victims is proving the age of the child. Since the POCSO
Act is silent on what documents are to be considered for determining the age of the
child victim, the provisions of Rule 12 of the Juvenile Justice Rules have been read by
Courts as applying to child victims as well. This rule recognizes only the birth

26
certificate, the school certificate of the child, or the matriculation certificate.
However, children who are only able to produce other documents – even a legal
document such as a passport – have to undergo a bone ossification test. This test can
give a rough estimate of the age of the child at best. There needs to be a clear
provision in the POCSO Act that lays down what documents should be considered for
proving the age of the child, and whether the benefit of the doubt should be given to
the child if the ossification test cannot provide an exact assessment.

Similar to the law of rape under the IPC. The pronoun used for the accused is “he”,
thus, again, only a male can be booked for the offences under the relevant provisions
of the POCSO Act. Though, unlike rape, a victim under the POCSO Act can be any
child irrespective of the gender, the accused still can only be a male and females are
again given a protective shield, for reasons unknown. Saying that females do not
subject children to forceful sexual assault is untrue.

These are clear examples of the unexplained gender bias in the laws relating to sexual
intercourse in India. Also, since the POCSO Act only looks into the age aspect, a
teenage girl below the age of 18 who experiences coercive sexual assault may later
have the boy booked under the IPC. But, vice-versa won’t be true due to the biased
definition. A woman who commits a like offence can be booked only for sexual
assault under the POCSO Act, the punishment therein being much less compared to
sexual assault under the IPC.

PITFALLS IN JUDICIARY AND DELIVERY OF JUSTICE:

One of the cornerstones of the POCSO Act is its mechanism to provide speedy justice
to children who are victims of sexual assault. However, many serious institutional
bottlenecks affect the legal protection of children below the age of 18 years.

An obvious example is the timeline for child testimony and conclusion of the trial laid
down in Section 35 of the POCSO Act. This requires the child testimony to take place
within a month of cognizance by the Court, and the trial within a year of the same.
However, these provisions are more often flouted than complied with due to the
overburdened nature of courts in India.

27
A related issue is the tendency of the lawyer’s to take adjournments, or adjournments
caused due to external factors such as strikes in Court. In such situations, the victim
ends up getting called repeatedly to court, or the hearing can be delayed as much as
six or seven months after the incident is reported. This reduces the chances of the
victim being able to recollect the facts of the incident accurately.

Interim compensation is another important issue. The child victim is entitled to

interim compensation to meet their immediate needs. However, it is necessary for all
stakeholders to understand that interim compensation should not be restrictively
interpreted to mean only his or her medical needs. It includes every need of the child
necessary for rehabilitation.

Under Section 33(2) of the POCSO Act, the Special Public Prosecutor while
recording the examination-in-chief, cross-examination or re-examination of the child,
should first communicate the questions to the Special Court and then those questions
should be put to the child. The child should also be given frequent breaks between
questions.

The role of the lawyer for the child is also pivotal. The mandate of the lawyer is to
assist the prosecution. This will require proper coordination between the Pubic
Prosecutor and the child’s lawyer. Further, in our adversarial justice system, while the
Public Prosecutor and defense lawyer have well-defined roles, there needs to be an
examination of how the lawyer for the child victim fits into this scheme.

ADMINISTRATIVE PITFALLS:

There are three main administrative pitfalls when it comes to POCSO.

Firstly, despite their best efforts, the police face a lot of barriers in conducting a
proper investigation in POCSO cases. It begins with the registration of the FIR. The
police must ensure that there is no delay in the registration of the FIR, and the
conducting of the Medico-Legal Case (MLC).

28
Secondly, the MLC of the victim is often not conducted because the victim’s family is
given inaccurate information on the long term ill-effect of the MLC on the child’s
health. When the child has to go for an MLC or an abortion, he or she often faces a
hostile atmosphere in the hospital. Doctors therefore need to be educated on how to
communicate with the child with sensitivity about what he or she is going through to
prevent further trauma. Furthermore, the forensic samples taken by the police often
end up getting contaminated, or putrefied due to improper storage. The police need to
be acquainted with the best methods of collecting forensic evidence, so that the
appreciation of the evidence can take place smoothly during the trial.

Finally, under Section 43-44 and Rule 6 of POCSO Act institutions such as the
National and State Commissions for the Protection of Child Rights are required to
monitor and evaluate the implementation of the Act on a regular basis in addition to
generating public awareness to the provisions of the Act. However, the functioning of
such departments and their monitoring and evaluation procedures have not been open
to public scrutiny. To this extent, it is imperative to study the procedures established
by such bodies and evaluate their effectiveness in generating impactful outcomes.

COMPARATIVE ANALYSIS OF LAWS INTERNATIONALLY:

Internationally, child sexual abuse is recognized as a serious crime against children.

However, the laws vary from country to country by their local definition of who is a
child and what constitutes child abuse. Child sexual abuse is a violation of every
child’s right when an adult tries to have a sexual intercourse with a minor who is doli
incapax for giving consent. This is also called as statutory rape.

The researcher has examined the laws of some countries where rate of child sexual
abuse is very high and others where the rate is relatively low.

SOUTH AFRICA:

South Africa is one among the top five countries which have the highest rate of child
sexual abuse. According to a 2009 report by trade union solidarity helping hand, one
child is raped every three minutes in South Africa.

29
Chapter 3 of the Criminal (Sexual offences and related matters) Act, 2007 deals with
sexual offences against children. It envisages:

i. Statutory rape which includes acts of consensual sexual penetration

ii. Statutory sexual assault which includes acts of consensual sexual violation.

iii. Sexual exploitation and sexual grooming of children

iv. Exposing children to explicit pornographic content and using children for
pornographic purposes

v. Forcing and casing child to witness sexual acts, self-masturbation and

display of genital organs.

vi. Sexual exploitation of disabled children in the ways mentioned above.

The South African Supreme court also made it illegal for a person previously
convicted of a sexual offence to loiter near public places like schools, playgrounds
etc. in order to protect children from sexual assault.

UNITED KINGDOM:

UK also witnesses very high rate of child sexual abuse. According to National Society
for Prevention of Cruelty to Children, in 2011/12 there were 36000 cases of sexual
offences against children were recorded. The 200337 Sexual Offences Act deals with
following sexual offences:

i. Trafficking children for the purpose of sexual exploitation

ii. Child sexual abuse by means of prostitution and pornography which

includes encouraging or facilitating prostitution or pornography.

iii. Sexual abuse of children with mental disorder.

iv. Voyeurism, exposure of ones genitals to the child and engaging in sexual
acts in public lavatory. Also, the accused can no longer argue that the child
consented for the sexual act. Any sexual intercourse and other non-penetrative

30
activities like sexual assault, or causing or inciting a child to engage in sexual
activity. These cover a range of both physical and non-physical contact.

NETHERLANDS:

Child abuse as form of maltreatment of children has the lowest rate (4%) in
Netherlands. The probable reason for this is the child sexual abuse policy in
the country. In Netherlands, various Advice and Reporting Centers on
Domestic Violence and Child Abuse (AMHK) are setup and children or adult
who suspect sexual abuse are given a reporting code. These centers are very
child friendly with counseling centers. As soon as any case is reported at the
center, it assumes the responsibility of investigating the circumstances and
finding out if there is a need of filing a case in law and in case of need, the
center ensures that the adequate action is taken by the courts in order to protect
child’s interest. Child abuse in the country is primarily seen as a family
related, medical or psychosocial problem.

The legal proceedings against child abuse can be instituted under these laws:

i. The UN Convention on the Rights of the Child which was ratified by

the Netherlands in March 1995. Articles 4, 5, 6, 18, 19 and 27 of the
Covenant are relevant to deal with the instances of child abuse.

ii. Dutch civil Law An important advancement in the area of child

rights was the inclusion of an additional reference in Article 247 which
reads as “Parents are under an obligation to take care of their children
and to raise them without using either mental or physical violence or
any other type of humiliating treatment”. This has resulted in reduction
of child sexual abuse cases.

iii. Criminal Law Criminal law finds it reference in very serious cases
of physical sexual offences.

iv. Action plan ‘children safe’ The current action plan for year 2012 to
2016 was initiated in November 2011. Its primary objectives are

· To prevent parents from abusing their children.

31
 · To encourage reporting of cases of child abuse.

· To put an end to existing abuse.

· To limit the damaging consequences of abuse.

US Federal Law:

All states in US have their different laws dealing with child sexual abuse. Federal
Law is applicable on the federal lands which include areas such as military base,
Indian territories and other government owned places. 18U.S.C. Section 2241, 2242,
2243, 224442 deal with aggravated sexual abuse, sexual abuse, sexual abuse of a
minor or ward respectively. Offenders under these sections are fined as well as
punished. An offender faces harsh sentences if the crime that occurred is of
aggravated nature for instance he/she abused the children by posing threat of serious
injury like death, he/she kidnapped the child for committing child sexual abuse.
Section 2256 of title 18 U.S.C. provides for definition of child pornography as
visually depicting any sexually explicit conduct involving a minor (less than 18 years
of age). These representations include images, videos or computer-generated images
which indistinguishable from the actual minor, any data stored on the computer which
can be converted into an image of child pornography. Any depiction of minor less
than 18 years of age is illegal irrespective of the child’s consent. Under Section 2251,
persuading, enticing, coercing and inducing child to engage in any sexually implicit
act is illegal. Any individual who attempts to conspire for such purpose is also
subjected to punishment under the federal law.

Furthermore, Section 2251A of Title 18, United States Code, specifically prohibits
selling, buying or transferring the custody of minor for purposes of producing child
pornography specifically done by the parents or any legal guardian or other person in
custody or control of that minor under the age of 18. Lastly title 18 United States
Code, Section 2260 makes it illegal for a person outside the United States to produce,
receive, transport, ship, or distribute child pornography with the intention to import or
transmit such visual depiction into the United States. Any violation of federal law is a
serious offence and the perpetrators are subjected to severe punishment with fine.

32
Convicted offenders may even face harsher punishment in case they have been earlier
convicted of the same crime. In addition to federal law, sexual offender can also be
punished under the state law.

CANADA:

The Criminal code and the Canada evidence Act are two federal laws covering
criminal justice matters in Canada. The amendment to these laws in January 1988
created child sexual abuse offences thus expanding the opportunity for courts to take
the testimony of child in cases of their sexual abuse. These are the offences related to
children covered under the Canadian Criminal Code:

i. Sexual interference

ii. Invitation to sexual touching

iii. Sexual exploitation of a young children

iv. Anal intercourse

v. Bestiality

vi. Offences involving parents or guardian in sexual activity of a child

vii. Exposing genitals to a child

viii. Vagrancy

ix. Offences in relation to child prostitution

x. Incest

xi. Indecent acts

xii. Sexual assault

xiii. Sexual assault with a weapon or with a threat of causing bodily harm

xiv. Aggravated sexual assault

33
The definition of these crimes under the Criminal Code reinforces the protection and
mental development of a child. Individual who sexual abuse a child cannot take a plea
that a child consented to such sexual activity. Under Canadian law, children above 12
years but below the age of 14 years are considered incapable of giving consent to any
sexual activity. Furthermore, the consent given by persons above 14 years of age but
below the age of 18 is considered invalid if the other person engaged in the sexual act
is in a position of trust and or authority over them. An offender cannot take a defense
that he believed that the child was older; this defense can only sustain if he/ she took
reasonable steps to find the age of the concerned child. Child victims are also
protected at the time of the prosecution. Corroboration of a child’s testimony is not
required for conviction of the accused. Publication of the information about the child
which would identify the child victim is prohibited. A child can also testify outside
the court room in presence of a judge or jury who will carefully observe the child
while he/she is giving the testimony. Video clips recorded by the child for testimony
within a reasonable time are also admissible. Other institutions also exist for the
protection of the child. The child welfare systems protect children, while the criminal
justice system protects the society from potential offenders. Both of these institutions
work side by side to carry out the dual responsibility to ultimately achieve the same
goal of protecting members of the society. Further, prosecution under Criminal law is
designed in a way not only to protect the child but also to safeguard the rights of the
accused in order to balance the interest of both the concerned parties.

GERMANY:

Germany follows legal codes and procedures which give more protection to children
as compared to many other countries. According to the Section 176 of the German
Criminal law, children under 14 years of age are considered doli incapax for giving
consent to any kind of sexual activity. Under Section 174, engaging in sexual activity
with a person below 18 years is also punishable in certain circumstances for e.g. when
the child is adopted and is in a state of dependence. The criminal procedure also
guarantees maximum child protection. Responsible police officers themselves
interrogate the child as soon as they receive any complaint.

ZIMBABWE:

34
According to the Zimbabwe Police reporting, 100 girls are sexually abused every day
in Zimbabwe. Mostly, children of the development workers are the victims of the
abuse but the issue is how should they confront such a menace? Zimbabwe has
ratified the UN convention on the rights of the child and the African Charter on the
rights and welfare of the child. These covenants recognize the fundamental duties and
responsibilities of the parents and legal guardians to work in the best interest of the
children. Children under legal framework are still considered as those who need
protection. To tackle the problem of increasing child sexual abuse, Zimbabwe has
dual theory of law comprising of Roman-Dutch Common Law statutes and the
African Customary laws. This dual theory of Justice System is sanctioned by the
Constitution. Criminal Law (codification and reform) Act and Domestic violence Act
are the special legislations to protect the children from sexual abuse. Acts resulting in
child abuse are criminalized and are made punishable with imprisonment or fine. The
prosecution is generally done by the state represented by its official attorney and in
some cases there is also a provision for private proceedings. The primary aim of the
state is to punish the accused and not to benefit the victim however it is the duty of the
victim to give genuine testimony otherwise she’ll be punished for breaching such duty
under the law. The criminal procedure and evidence act which was amended in 1997
makes it mandate for a criminal court to adopt protective measures for vulnerable
witnesses. Such measures would include appointing intermediaries and support-staff
for the witnesses and the state will ensure that the witness gives evidence in a position
or place where the likelihood of the witness suffering from any kind of stress and fear
is very less. It may be in or out of presence of the accused. The victim and the
witnesses are given constant moral support by the intermediaries hired by the state.

CONCLUSION:

The present legislation for criminalizing sexual offences against children was a much-
needed piece of legislation. The adjudication process for the same should be made
more transparent and the role of police in such offences much more prompt, so that
people sense a feeling of contention and credibility in the whole process from
initiation to adjudication. The deterrent effect which this act renders is also sufficient,
but to overcome and eradicate this issue from the grassroots level, the collective

35
consciousness among the masses should be pure and must include the feelings of love
and care.

36
RESEARCH 4

Date on which it is assigned: 23 August 2021

Is it continuing work: Yes
If Yes, from which date: 23.08.2021- 25.08.2021
Tools used in Research: INDIAN PENAL CODE,1860, R.V. KELKAR,
WWW.INDIAN KANOON.COM, WWW.SCCONLINE.COM

LATEST LAWS ON SECTION 406 AND 498A OF

INDIAN PENAL CODE,1860

Section 405- Criminal Breach of Trust

In criminal breach of trust, the accused is entrusted with property or with dominion or
control over the property. The title of the offense itself suggests entrustment or
property is an essential requirement before any other offense takes place in this
section.

The essential ingredients are:

 The accused must be entrusted with property or dominion over it.
 He must have been dishonestly misappropriated the property or converted it to his
own or disposed of it in violation of such trust.

Section 406- Punishment for Criminal Breach of Trust

Whoever commits criminal breach trust shall be punished with imprisonment of either
description for a term which may extend to 3 years or with fine or with both.
In other words criminal breach of trust means when an offence is committed by the
accused in the beneficial interests of the property, by making or converting the
property of some other person for his own use.

Section 498A- Husband or Relative of Husband of a Women Subjecting her to

Cruelty
Whoever being the husband or the relative of the husband of a women, subjects such a
women to cruelty shall be punished with imprisonment for a term which may extend
to 3 years and shall be liable to fine.

The essential ingredients are:

● The women must be married.
● She must be subjected to cruelty or harassment.
● Such cruelty or harassment must have been shown by husband of the women or
relatives of the husband. This section was inserted to safeguard women from cruelty
by husband and his relatives in marital life. It is used by many women to protect
themselves from cruelty but many women also misuse the section 6.

MISUSE OF SEC-498A:

37
In today's modern world the violation of this section, its aims and goals is on the rise
with women frivolously making false allegations against their husbands with the
purpose of getting rid of them or to simply hurt them and their family.
Radical feminists has made Section 498A as a weapon in their hands due to rise in
modernization, education, financial security and the new found independence . Many
a unfortunate husbands and in laws have become victims of their revengeful daughter-
in-laws.
Most cases where Sec 498A is called upon turn out to be a false as repeatedly
accepted by High Courts and Supreme Court in India as they are mere threat attempts
by the wife or her close relatives when faced with a strained marriage. In most cases
498A complaint is followed by extortion to resolve the case out of the court.

Use of Section 498 A by Indian Courts:

Indian Courts had been using this provision to protect the women from facing the
cruelty which they often faced at their matrimonial home. As researched, 9 out of 10
of the cases are always related to dowry, wherein the woman is perpetually warned
for want of more money and property which if not fulfilled then the married woman is
tortured, threatened, abused that can be both physically and verbally .The increasing
rate of bride burning which is due to want of more dowry and brutal torture of young
wives, together with a clear get away of the abuser is a clear sign that the court has
not taken any strong measures for the implementation of Section 498A of IPC
properly. It is seen in many judgments that the court has not considered mental cruelty
caused to the woman but has only focused on any sign of physical cruelty. If evidence
does not show that the woman was physically tortured , then the court does not look
into the case. Then what the court does is call the woman oversensitive or of low
tolerance level and having an unstable mind. When women fabricated charges against
her husbands under S.498A IPC as the offence under this is non-bailable and
cognizable then the man being innocent does not get a chance speedily to
get justice and we know ‘justice delayed is like justice denied’.
Therefore, the lawmakers must recommend some ways of making this section
impartial so then the guilty is punished and the person wronged is given justice.
In India the position of the women is still bad. They still need rights to ease
themselves in society but many a times fails to notice others’ rights as long as their
rights are secured. Today at least the educated woman of society must agree with the
mantra of equality and demand the same but the reality is that the trend is slowly
getting reversed. Women are taking a lot of advantage of the fact that they are
considered as the ‘weaker sex’ and on the foundation of rights ensured to
them they are violating others’ rights.

ROLE OF JUDICIARY IN CONTROLLING THE ABUSE OF SECTION

498A:
RAJESH SHARMA & OTHERS V STATE OF UP & ANOTHER (AIR 2017
SC)
The various directions were given by Supreme Court to prevent the misuse of this
section. These are as follows:
i. Complaints under sec 498A and other connected offences may be investigated only
by designated Investigating Officer of that area.

38
ii. If the settlement is reached between the parties, it is open to them to reach High
Court under sec 482 for seeking quashing of the proceedings or any other order.

Kaliyaperumal & Anr. v. State Of Tamil Nadu (AIR 2003 SC 3828)

FACTS:
At the time of the marriage between the deceased and her husband (Ashok Kumar),
demand for jewelry and cash was made by the latter’s family. The family of the
deceased could not arrange the whole demand at the time of marriage and promised to
pay the balance soon. Meanwhile, Ashok Kumar was working abroad and whenever
he left India, he would leave the deceased with her parents. The deceased was
continuously insulted, humiliated, and tortured because the demand was not
completely met. When it became unbearable, the deceased left her matrimonial
house. Subsequently, appellant no. 1 (her father in law) went to take her back and beat
her in a public street. On hearing about this, the parents of the deceased went to the
house of appellant no. 1 where they were insulted and abused. One day, they received
information that their daughter had committed suicide. A charge sheet was filed
against the appellants and Ashok Kumar, but he was acquitted.
ISSUE:
Whether or not a case under Sections 498A is made out against any of the accused.
DECISION:
The appellants were found guilty and convicted under Sections 498A by the Sessions
Judge. On appeal, the High Court upheld the conviction and confirmed the sentence
five years as imposed in respect of offence punishable under Section 498A.
The Supreme Court in its judgment based on the facts of the case, the Court upheld
the conviction of appellant no. 1 (Father in law) under Sections 498A. The order of
conviction of appellant no. 2 (mother in law) under Section 498A was also upheld.

ARNESH KUMAR V STATE OF BIHAR (2018 SC)

Facts:
The wife alleged that dowry was demanded from her and that she was driven out of
the matrimonial home on non-fulfillment of such demands. The husband applied for
anticipatory bail which failed. SO, the husband approached to the Supreme Court by
special leave petition.
Decision:
The Court observed that Section 498A of IPC is a cognizable and non-bailable
offence, it is many a times used as a weapon rather than shield by aggrieved wives. It
results in annoying the husband and his relatives as they will get arrested under this
Section and it is more distressing to see incapacitated grandfathers and grandmothers
being arrested without a prima facie case. Thus, the Court laid down certain
guidelines which the police officer must follow while arresting under Section 498A,
IPC that such arrest must be based on a reasonable satisfaction with respect to
genuineness of the allegation. Moreover, even the Magistrates must be careful enough
not to authorize detention casually and mechanically.
Also, court held that to ensure that the police officers do not arrest the accused
unnecessarily and Magistrate do not authorize detention casually and mechanically in
cases under section 498A of IPC. The court gave certain directions regarding the
same.

CONCLUSION:

39
The position of the women in India is still bad and need laws to protect her rights.
They still need rights to alleviate themselves from the society. The educated women
must demand for equality, but the trend is getting reverse that they are taking due
advantage of the fact that they are the weaker part of the society. This has led to
injustice to the women who are actually suffering. It is evident from the recent
judicial pronouncements and various commissions report that section 498A of IPC
has become a menace in our modern-day society. It can be concluded that Section-
498A continues to remain in our statute books in order to provide protection to the
women but at the same time, it needs to be highlighted it must be used judiciously and
there is a need to curb the misuse of this provision by some married women.

40
RESEARCH 5
Date on which it is assigned: 26th August 2021
Is it continuing work: Yes
If Yes, from which date: 26.08.2021- 29.08.2021
Tools used in Research: BLOG.IPLEADERS.IN, WCD.NIC.IN

STATUS OF MARRIAGE IF GIRL IS A MINOR AND

LAWS ON BIGAMY IN INDIA
INTRODUCTION:
The principal law preventing Bigamy in India is Indian Penal Code but if personal
laws does not specifically mention Punishment for Bigamy or illegalize Bigamy, then
a person cannot be convicted for the offence of bigamy.

Laws Prohibiting Bigamy:

Bigamy is prohibited under Section 494 of the Indian Penal Code. The law states that,
whoever in the lifetime of existing husband/wife marries someone else, such marriage
by reason of its taking place during the lifetime of such husband or wife, should be
considered void and should be punished for such offence. If any person marries more
than once during the life of first husband or wife should be punished with
imprisonment which may extend to seven years, and shall also be liable to fine.

When is Second marriage valid?

There are certain exceptions for second marriage-
If the competent court has declared first marriage of such person void.
If any person marries during the existence of first marriage, and husband or wife of
that person is continually absent for seven years and have not been heard of by such
person as being alive within that period. But, facts should be disclosed to the person,
with whom the second marriage is contracted.
If any person comes under this exception, then contracting second marriage should
not be considered as an offence, unless otherwise proved.

Legal Status of the Second marriage:

Legally, Second marriage is considered void if first marriage still persists. Section 494
of Indian Penal Code itself punishes for Bigamy unless second marriage comes under
the exception provided in this section.

Is there any legal right for the Second wife?

The second wife does not have any legal right. In fact, the second marriage is
considered void.
Women whose marriage has been declared void suffers a lot. There are no specific
provisions for the second spouse, but there are a few ways in which she can sue her
husband-19.

Cheating–

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Section 495 of Indian Penal Code states that whoever commits the offence of
marrying someone without disclosing the fact of his/her second marriage is
punishable with imprisonment which may extend to ten years, and shall also be liable
to fine.

Property rights of the Second wife:

As provided above, the second wife does not possess any rights that normally the first
wife possess. The second wife doesn’t have the right to her spouse’s property unless
such marriage is valid under exceptions provided in Section 494.

Property rights of children born out of such void marriage:

It is difficult for any women whose marriage has been declared void to maintain
children out of such marriage. There are no rights for Second wife as well as it is very
difficult to get maintenance from such void marriage. Therefore, Section 16 of the
Hindu marriage act states that any child, who would have been legitimate if the
marriage would have been valid, shall be legitimate. Thus, any child born out of void
marriage is legitimate and thus shares equal rights in the property of their
father/mother. This provision is also applicable to children born out of a
live-in relationship.
Children born out of void marriage get equal rights as the children of the first wife in
self-acquired and ancestral property of their father. But they cannot inherit ancestral
joint family properties. Children of void marriage will get share only in their
father’s/mother’s property.

What if facts of the first marriage are not disclosed to the person whom the
second marriage is contracted?
Whoever marries someone without disclosing him/her about their first marriage are
punishable under Section 495 of Hindu marriage act. When a person keeps secrecy
about his/her first marriage they are punishable with imprisonment of ten years and
are also liable to fine.
A second wife can file a petition for cheating and bigamy and may request to nullify
that marriage.

Will Live-in relationship count as marriage? When?

Yes, a bench of Justice MY Eqbal and Amitava Roy in the case of Dhannulal and
Ors. v. Ganeshram and Ors. said that “where it is proved that man and woman have
lived together as husband and wife, the law will presume, unless contrary is clearly
proved, that they were living together in consequence of valid marriage and not in a
state of concubinage.”

What does the present law state?

The new Act (Prohibition of Child Marriage Act, 2006) envisages preventing child
marriages with enhanced punishments.
“Marriage of a minor child to be void in certain circumstances.-
Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or
if the minor is married after which the minor is sold or trafficked or used for immoral
purposes, such marriage shall be null and void.

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Legality of marrying a girl below 18 under the Hindu Marriage Act
Under the present Hindu Marriage Act (HMA), only the parties to a child marriage
are punishable even if they had not consented to the union. The Act lacks any
provision for punishing parents or guardians or people who solemnised the child
marriage. A plea for annulment of marriage by the girl would be accepted only if she
was married off before attaining the age of 15 and she challenges the marriage before
attaining 18 years of age. However, there is no express provision to prohibit child
marriage per se (which even makes such marriage void completely).
Marriage of a person with a girl whose age is below 18 is voidable. It will subsist until
it is annulled by a court under the Prohibition of Child Marriage Act, the Madras High
Court . Such a marriage is not a “valid marriage” in the strict sense; but it is “not
invalid,” it said.

Recent controversies regarding the Act :

The biggest controversy is “What is the right age of consent?”. This question has
puzzled the whole judicial system as well as the legislature. As there have been many
instances where a minor (a girl below 18 years of age as per the law) has willingly
decided to marry a major beaus (partner). There have been several cases where it was
found that a minor had willingly chosen to marry and later his partner had to suffer
legal consequences whereas such minor was considered innocent.
In India there are Personal laws provided to differences has caused conflict between
personal laws and the Marriage Prohibition Act (also referred as secular law) and
judicial pronouncements have time and again highlighted that there is an overriding
effect of secular law21 over the personal law. However, still there are inconsistencies
in the judgments of various high courts.

The Delhi High Court in Lajja v State held that PCMA (Prohibition of Child
Marriage Act) should prevail over personal laws.
The same was reiterated by The Karnataka High Court in Seema Beghum v State in
2013. However later in 2014, Gujarat High Court in Yusuf Ibrahim Mohammad
Lokhat v State of Gujarat held that:
“According to the personal Law of Muslims, the girl no sooner she attains the puberty
or completes the 15 years, whichever is earlier, is competent to get married without
the consent of her parents”. This clearly gives the idea that according to the learned
judges, the personal laws should be taken as a primary source to decide the cases of
underage marriage.”
Recently in the year 2015, the Hon’ble Madras High Court declared that PCMA is
applicable to every community and is not against the Muslim law. There are no
judgements by Supreme Court to settle this point. Thus, there lies a state of ambiguity
and irregularity that is yet to be resolved.

Law Commission’s view on legal status of marriage before attaining majority

18th Law commission headed by Justice A.R Lakshamanan in its 205th in the year
2008 Report suggested that marriage between boys and girls between the age of 16
and 18 years should be made voidable at the option of either party by a court decree.
Further the commission suggested that the age sexual consent should be increased
from 15 to 16 years regardless of marriage.

Section 4 of The Child Marriage Restraint Act,1929:

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Punishment for male adult above twenty one years of age marrying a child --
Whoever, being a male above twenty one years of age, contracts a child marriage
shall be punishable with simple imprisonment which may extend to three months and
shall also be liable to fine.
DIARY OF DAILY WORK IN FIRM

INTRODUCTION
My internship with Adv. ANKIT KHATRI has immensely been a commendable
learning experience. The internship delivered an insight look at society and the
working of law through the medium of court practice and through the medium of
zoom app he taught me about different aspects of law which would be applied in daily
law life very practically.

Conclusively, the entire spell guided me and helped me in gaining more and more
knowledge and experience.

TASKS PERFORMED

As part of my internship I was involved in performing various tasks some of which

are as described as follows:-

● Attending Webinars - My advocate conducts webinars very frequently to

taught us about different topic of laws such as Indian Penal Code, 1860,
Sexual Harassment at workplace, Environment Protection Act 1986, etc.

● Drafting Research paper - During my period of internship, I have done legal

research on the topic Mutation of property.

● Drafting Public Interest Litigation- I have drafted a Public Interest

Litigation during the tenure of my internship under Article 32 of the Indian

Constitution which helped me a lot to gain knowledge about the field of law.

● Making of Case Analysis- Under the guidance of my mentor I have made a

case analysis.

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 CONCLUSION
To conclude the report, I would say that this internship experience was an amazing
Learning experience. It opened up the curtain between academic knowledge and its

application in real life. It gave me a taste of what I am going to do in my future. I felt

privileged to be a part of the legal fraternity and lucky to have interned under the

guidance of Mr. ANKIT KHATRI. From him I not only got to learn the quirks of the

legal profession as a lawyer but also got to know the importance of having a wide
social base and the importance of networking. One thing that will always stay with me

is to be a successful and a passionate litigator, one needs to love the heavy case files

and the voluminous books and love to be surrounded by them and feel awed by them.

Without exposure to the real world, one cannot understand the analytical and positive

application of law and jurisprudence and the actual function and the structure of law.

What we study is the body, but what we have learned from the internship is

mechanical. I was surprised to see how the simplest of laws were applicable in the

most difficult situations and how loopholes leave so much scope for evolution and

improvisation today in the field. I also observed that law is everything but constant

and with the same soul as of humans. In other words or as that of our original values

and in case of laws, they must always be faithful to the constitution, which is the

supreme law of the land and governs all equals and unequal in respect of each other.

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MY EXPERIENCE

It was a great experience working under the guidance of Advocate ANKIT KHATRI
and his juniors. Everyone was very cooperative and understanding. They guided me at
every step and helped me in learning the technicality of the legal world. They taught
me how to deal with clients in their problems. I am thankful to my college, my
teachers for their guidance and help, without them this project could never be reality.

Bibliography
1.https://www.manupatrafast.in
2. https://www.livelaw.in
3. https://work.chron.com/purpose-internship
4. BLOG.IPLEADERS.IN
5. WCD.NIC.IN
6. WWW.INDIAN KANOON.COM
7. WWW.SCCONLINE.COM
8. Cr.p.c Bare Act
9. C.p.C Bare Act
10. INDIAN PENAL CODE,1860
11. Many other commentaries and internet surfing.

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