A woman from Gujarat has sent 150 condoms to Bombay High Court additional judge Justice Pushpa V Ganediwala as a mark of protest for her recent controversial verdicts in sexual assault cases under the POCSO Act.
Devshri Trivedi, the woman who sent the condoms, identified herself as a political analyst. She says she had sent condoms to 12 different locations, including Justice Ganediwala's chamber, the registry of the Nagpur bench of the Bombay High Court and the principal seat in Mumbai.
"I cannot tolerate injustice. A minor girl did not get justice because of a judgment by Justice Ganediwala. I am demanding that she (Justice Ganediwala) be suspended," Trivedi told India today.
Trivedi also told India today that she had sent the packets on February 9 and had received delivery reports for a few of them. "As a woman, I do not feel I have done anything wrong. I do not have any guilt. Women have to stand up for their rights. By this order of Justice Ganediwala, men can go scot-free for sexually assaulting girls over their clothes," she said.
Trivedi's actions however, may not go unpunished: The registry office of the Nagpur bench told India Today they did not receive any packet of this nature. Senior advocate of the Nagpur Bar Association, Shrirang Bhandarkar, said, "This is a clear case of contempt. We demand that action should be taken against this woman."
The controversial judgement in question is a case involving a 12-year-old girl who had reportedly been groped by a 39-year-old man in December 2016.
After four years, the Nagpur bench of the Bombay High Court headed by Justice Pushpa Ganediwala found that the accused did grope the child but it did not constitute sexual assault punishable with POCSO but instead constituted the offence of outraging a woman's modesty under IPC section 354. The reason? The girl reportedly had her top on and since there was no "skin to skin contact", the groping could not be ruled as an assault.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19, held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault.
The POCSO Act defines sexual assault as when someone "with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault". The court, in its verdict, held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.
The Bombay HC verdict has come as a shock not only to survivors but also to child safety and protection experts who feel that the move sets a "dangerous" precedent for defining sexual assault in court.
The Supreme Court on Wednesday stayed the Bombay High Court's controversial order acquitting an accused, which had stated 'skin-to-skin' contact necessary to be classified as sexual assault under the POCSO Act. Attorney General KK Venugopal said the order would set a dangerous precedent.
Following the first incident, the Nagpur bench of the Bombay High Court has held that “the act of holding a girl's hands and opening the zip of pants will not come under the definition of sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012. The act instead comes under the ambit of “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code, observed the bench.
The ruling was pronounced by a single bench of Justice Pushpa Ganediwala in a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a five-year-old girl.
The Session Court had convicted the man and ruled it to be "aggravated sexual assault" punishable under Section 10 of POCSO and sentenced him to five years of rigorous imprisonment and fine of Rs 25,000 with a default simple imprisonment for six months.
However, Justice Ganediwala set aside his conviction under Sections 8, 10 and 12 of POCSO Act, but held him guilty under Section 354A (1) (i) IPC, which carries a maximum imprisonment of three years.
The Nagpur bench observed that the case comes under the gambit of “sexual harassment” and not “sexual assault”. “The offence of sexual harassment under Section 354A (1) (i), which deals with physical contact and advances involving unwelcome and explicit sexual overtures, is attracted in the case,” it said.
On January 30, The Supreme Court has reportedly withdrawn its recommendation to make Justice Pushpa V Ganediwala a permanent judge of the Bombay High Court in light of her controversial orders on two sexual assault cases in the recent past.