Two-finger Application – A Preparatory for Judicial Surgery
By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commission,TVM
10/02/2024Two-finger Application – A Preparatory for Judicial Surgery
(By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commision, Thiruvananthapuram)
A salutary judgement of the Apex Court in State of Jharkand v. Shailendra Kumar Rai, reported in 2022 (6) KLT 194 (SC), which declared the two-finger application or two-finger test or per vaginum examination is an aggression into the privacy of a victim. It led to upholding the dignity of the victims of sexual violence. A victim complained of sexual violence before the authorities expecting relief but authorities, without heed to her voice, subjecting her to undergo a preparatory for judicial surgery is a violation of the dignity of the victim and pushed her more traumatized than the trauma she faced. Hence the Apex Court held that testing the hymen of the victim, to testify about her chastity is a foolish journey to judicial surgery.
The facsimile of the case is that the accused entered the house of the victim and pushed her to the ground and committed rape upon her while threatening to kill her if she sounded an alarm. She called out for help, at which point the accused poured kerosene on her and set her on fire with a matchstick. Her cries for help led her grandfather, mother, and a village resident to come to her room. The accused have fled the scene upon seeing them. The victim’s family (along with the villager) extinguished the fire and took her to Hospital, where she was admitted and underwent treatment for the injuries sustained by her. Later she succumbed to her injuries. Section 307,341,376,448 and later 302 IPC were charged upon the accused.
To understand the preparation for judicial surgery of the victim of every sexual assault, we must first look into the methodology of evidence collection. Here she has to undergo a medical examination though such examination is another form of mental torture to the victim. The doctors are indeed shown a sympathetic approach towards the victims and her consent is the most vital to it, the mode and methodology are to push her more traumatised than the trauma she faced.
The methodology of evidence collection from victims of sexual assault especially from rape victims is of extreme privacy and is to be done by a female Registered Medical Practitioner. The examination is of with the consent of the victim alone. If no female Medical Practitioner is there, then a male Medical Practitioner can examine with the permission of the victim. If that event occurs, a lady relative should be present at the time of examination. But if the victim is below the age of 18 years then the examination shall be done by a female registered Medical Practitioner. It is mandated that no reference shall be made by the examining doctor to another hospital on any flimsy or other reasons or no refusal for examination would be made.
The two-finger test is an explicit and intrusive physical examination wherein a doctor inserts two fingers inside the vagina of rape victims to check whether the hymen is intact and to determine the laxity and rugosity of vaginal muscles. It is done by inspecting the size of the vaginal opening and for tears in the hymen to determine if the women have engaged in or have been subjected to sexual intercourse.
Before moving to the methodology of evidence collection, let us examine what are the tools used for this procedure.
The first tool is three different coloured vacutainers. It is to be used for the collection of blood samples. A vacutainer is a sterile glass or plastic test tube with a coloured rubber stopper (tip) that creates a vacuum seal. Out of which, a Gray top vacutainer is used for the collection of blood. Whenever we have a suspicion that the victim has been intoxicated with certain drugs, the blood contained in this vacutainer is to be sent for chemical analysis to find out whether a possibility of any intoxication. Secondly, the violet top vacutainer is used for the collection of blood for the use of examination for DNA analysis. Finally, the red top vacutainer is used for all other purposes.
Four number coloured churidars or other like materials in Medium, Small, Large, and Extra-Large sizes and innerwear of different sizes were kept in the examination room. At the time of examination, the victim is to be requested to remove the entire dress including the underwear and all the same are to be packed and sealed by the examiner for further evidence. The victims are to be provided with a full set of new dresses instead of one she removed.
Another tool is four numbers of 5 Cubic Centimeter syringes. It is meant for drawing the blood from the victim and the accused for sending for examination.
A pair of hand-powderless gloves is another tool which is used by the examiner at the time of examination.
A bowl with normal saline or distilled water is also prepared to dip the swab stick for moisture. Because the dry swabs will not pick up evidence.
Toluidine blue solution can be used to improve the visibility of injuries. Sometimes the injuries are not visible as lesion injuries, especially on the body of the external genital area.To improve the visibility, the examiner is expected to apply 1% toluidine blue solution with a cotton tip swab. The application of toluidine solution in the genital area is of sufficient light, then only the lesions of injuries became more visible.
If the woman had unprotected sexual intercourse then she is likely to become pregnant. To avoid this, if the survivor comes within three days (i.e., 72 hours) of the incident, then these contraceptives shall be provided to her free of cost. This is a single pill that has to be taken within three days of unprotected sexual intercourse. It prevents unwanted pregnancy.
Another tool is NACO, National Aids Control Organization’s colour-coded kit. It supplies five different colour-coded kits and depending on the suspicion of the clinical features to prevent sexually transmitted infections as part of unprotected sexual intercourse. Out of which a grey kit contains two Tablets. Tab.Azithromycin 1g(1) and Tab.Cefixime 400 mg(1) are those. While examining the victim, if any trace of Urethral Discharge (UD), Cervical discharge (CD), Ano-Rectal Discharge (ARD), or Painful Scrotal Swelling (PSS)
Presumptive treatment (PT) then the above tablets are to be advised. The Green colour-coded kit contains Tab.Secnidazole 2mg(1) and Tab.Fluconazole 150 mg(1). While examining the victim if any trace of Vaginal Discharge (VD) then these tablets are to be advised. White colour-coded kit contains Inj. Benzathine penicillin 2.4 MU(1) and Tab. Azithromycin 1g(1) and Disposable syringe 10 ml with 21 gauge needle (1) and Sterile water 10ml(1) which are to be advised if there is any trace of Genital Ulcer Disease- Non-Herpetic (GUD-NH). Blue coded kit contains Tab. Doxycycline 100mg (30) and Tab. Azithromycin 1g(1) and if any trace of Genital Ulcer Disease-Non-Herpetic (GUD-NH) – for patients allergic to penicillin then these medicines are advised. Finally, the Red colour-coded kit contains a Tab. Acyclovir 400 mg. These tablets will be advised for Genital Ulcer Disease- Herpetic (GUD-H).
A nail cutter, scissors and empty covers are some other tools in the hand of the examiner.
In addition to the tools, some envelopes are also in the hands of the examiner. It contains a white sheet.The woman is requested to stand on the white sheet and directed to undress herself. While she is undressing and then opening up the scalp hair,there is some possibility of falling dry leaves or mud, if the alleged incident has happened in the outside area of the home. All the same is to be collected in the debris sheet and folded back and kept in the envelope. It is the first step of evidence collection. For this purpose,strict privacy has to be maintained for the survivor. Speculums and slides are other tools.
Now let’s examine the protocol and procedure for the collection of evidence.
Two slides of vulva swabs are to be collected for evidence from the survivor. The
vulva is the part of the female genitalia on the outside of the body. It includes labia, clitoris, vaginal opening, and the opening to the urethra. Collecting the swab from this area is most important for proving the case of sexual intercourse before a court of law.
The procedure for taking the vulva swab from this area is, first to direct the victim to lay on the procedure table and then to fold her legs at 90 degrees or place her legs on the table stand. Then gently separate the vulva with the left hand of the examiner. Then a cotton tip swab is to be taken and moistened with saline water and then rolled from the top left side to the last down point of the vulva.It is very important to swab from the top to last downpoint of the vulva.After the roll, the same is to be smeared on the glass slide. This procedure is to be followed on the right side of the vulva with another swab stick and smear it into another glass slide noted as the right side of the vulva swab. After taking the vulva swab the glass slides should be left to dry then promptly put the slide in the slide box.After taking the vulva swab the swab sticks are to be properly put into the folder provided in the examination kit.
The next procedure is urethral swab collection. The urethra is nothing but a small hole through which the urine is passed. For a collection of urethral swabs, a cotton-tipped swab is to be used. Soak it into the saline water and then the excess of the saline is to be squeezed out. Then gently separate the urethra and gently pass the swab stick and then turn it in a clockwise direction to remove. After removing it, smear it on the glass
slide. Then the glass slide is kept for some moments to allow it to dry and then it is placed in the slide box.
The next procedure is for the collection of vaginal swabs. To collect vaginal swabs, two types of speculums are used. One is a round speculum and the other is Sim’s vaginal Speculum. Select the smallest one if the victim is young. The speculum is to be selected to suit the age of the victim and the nature of her physical status. Before this procedure, the victim is to be informed about the examination and its procedure and then obtain her consent. After that, the procedure is to be explained to her and leave 5 to 10 minutes for her own decision. Thereafter, if she gives consent then ask her to relax for some moment. Thereafter complete privacy is ensured for examination. The victim is again directed to lie on the procedure table and place her legs on the procedure stand fixed on the table. Then gently separate the vulva with the left hand and gently place the speculum after its sterilisation and turn it ninety degrees. Thereafter, took another one and gently placed and turned it in the opposite ninety-degree direction. If the speculum is expandable with hinges then there is no need to turn. Now the cervix and the upper vagina can be visualised clearly. If the woman is married or sexually active then a round speculum can be used. Three cotton-tipped swabs after moisturising with saline,are placed at the mouth of the vulva then go below it and gently turn around. The swab is to be wiped in a glass slide and leave the glass slide to air dry. The second swab stick is to be wiped out below the cervix and the swab is to be wiped in the glass slide. The third swab is to be used to collect swabs from the inner side of the cervix.So the swab is to be collected one from the above portion of
the cervix one from the below portion of it and the last one is through the cervix.
Another envelope is meant for the collection of scalp hair. In that envelope, a form is attached and a comb is placed inside. The victim is advised to scrub her hair and the loose hair is collected and placed in the envelope.
The hair present in the vulva is to be collected. The victim is requested to comb her pubic hair and the hair placed either in the comb or from the procedure table is to be collected.
The fussed hair present in the vulva is to be identified. It is the hair which stuck to each other due to the sexual relationship. The same is severed gently by using scissors and place in the envelope for cut strands of public hair.
Loose pubic hair collection is another method for evidence collection. It is the most important envelope meant for the collection of foreign pubic hair. The collected foreign pubic hair is to be placed in the envelope for loose foreign pubic hair.
A nail cutter is also provided in the examination kit. The nail clippings of the victims of all the fingers of the hand are to be collected and put in the envelope.
A nail prong is also provided to the examiner. The nail scrapings of the victims are to be collected with the help of the nail prong and the same is to be put into the envelope provided for the purpose. The nail scraping is to be collected from all the fingers of the hands.
The collection of nail stains is another mode of evidence collection. If any stain is found on the nail beds then with a swab stick after dipping it in the saline, roll it on the nail bed and apply over the glass slides. Thereafter the glass slices are placed for air drying and put in the box.
The next most important evidence collection is the buccal swab collection. Buccal relates to cheek. The buccal swab is not a routine thing if a history of suggestive oral sex then we are expected to collect the buccal swab from the right side of the mouth and thereafter the left side of the mouth. For this,the examiner requested the survivor to open her mouth widely and to swipe from the left cheek. After obtaining the swab smear it to the glass slide and allow it to air dry. The above steps are to be repeated on the other cheek.
After examination, the instruments which have been used are to be disposed of. All instruments are dipped into a 5 per centchlorine solution.The confidential report of the medico-legal examination is to be provided to the police for investigation and a copy is to be retained in the hospital for further reference.
These are the cumbersome procedures for evidence collection from the victim. It is regretful to say that being subjected to these types of examinations by the victim may lead a mental trauma for her. The finger test and the examinations are preparatory for judicial surgery. Though these types of evidence collections are water-tight compartments to prove the case of the prosecutions some slight contradictions may lead to the acquittal of the accused. Several victims were carried out after the incident. The contraceptives are only advisory to the victims and not a compulsory one. If the lady reports the incident after the incubation period then the contraceptives have no use at all. No pregnancy tests are directive and under the realm of medical examination.
It is highly necessary and essential to subject all the victims of sexual assault to pregnancy tests and if they are found positive, immediately subject them to Medical Termination of Pregnancy to avoid unwanted children. Moreover, it is high time to pass a judicial directive or an executive order to flexibly the rigidity of MTP to the victims of sexual assault.
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By A.P.M. Moidu, Kannur
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2023 (6) KLT 420 –Rajappan Assari v.State of Kerala– Boon to Fraudsters?
By P. Rajan, Advocate, Thalasserry
01/02/20242023 (6) KLT 420 –Rajappan Assari v.State of Kerala – Boon to Fraudsters?
(By P. Rajan, Advocate, Thalassery)
The judgment shown above relates to the Criminal Revision arose out of a misappropriation case in which the trial court and the appellate court had convicted the revision petitioner (accused No.1) under S.406 IPC and in the Cr.Revision, High Court has set aside the conviction and sentence holding that no criminal breach of trust has been proved by the complainant to attract Sections 405 and 406 of IPC, as entrustment of the amount by the complainant to the accused (revision petitioner) with a stipulation to give high rate of interest - ultimately the accused failed to pay the deposited amount and even interest. This being the case of the prosecution, High Court reversed the judgment of the lower courts holding that prosecution has not succeeded in proving the guilt of the revision petitioner.
Facts Discernible
Acceptance of the amount and failure to return the same to the unwary depositor was not in dispute. Accused has not disproved these aspects as the burden of proof he could have discharged under S.102 of the Indian Evidence Act. The point to be considered is whether such an entrustment and subsequent mis-appropriation/swindling of money by the accused would come within the purview of the penal provision. It is evident that the complaint was under Ss.420 r/w 120B IPC also but the trial court convicted the accused under S.406 IPC only presumably the ingredients of S.420 having not been proved. It is pertinent to note that even a charge under S.420 IPC in the case could have been established if the prosecution had attempted to prove that the representation of the accused at the initial stage itself was false knowingly made – no intention to fulfil, on that promise the complainant happened to part with the amount believing the promise to be true, later on the assurance of return of the amount proven to be with fraudulent intention coming within the definition of cheating as defined in Ss.415 and 420 IPC. Lack of evidence, required to prove that charge might be the reason to disallow a finding favouring the complainant for the offence of cheating.
In the reported judgment of the High Court, court has mainly relied upon a Supreme Court judgment reported in 2023 KLT OnLine 1041 (SC) = AIR 2023 SC 228 - Deepak Gaba
& Ors. v. State of U.P. to hold that no offence under S.406 IPC is made out by the com-plainant - accepting the observations made in that judgment. It is held that when deposit of amount is made to derive interest, failure to return the amount will not attract criminal liability under S.406 IPC, ruled the High Court.
The facts of the case decided by the Supreme Court relied upon the High Court are evidently different – just like chalk and cheese. Supreme Court has given such an observation under S.406 IPC on a totally different set of facts. The facts of the case before the top court are per se of a civil dispute, that is the reason why the court has made such observations mainly basing on the pleadings in that case in order to quash the criminal proceedings. In Deepak Gaba’s case, supply of goods and failure to pay the amount for the goods received by the indictee, giving of blank cheque are undisputed facts but led to a complaint under Ss. 405, 420, 471 r/w 120 B IPC. It is contended by the accused/petitioner before the Supreme Court that there was a demand to take back the defective goods supplied by the complainant, also requested to adjust the amount of that goods against the outstanding liability. Averments in the complaint and documents produced were sufficient to hold that the dispute between the parties is undoubtedly was of civil nature and at the most as a cheque was given, complaint under S.138 NI Act 1988 would suffice, if any legally enforceable debt or liability existed. The court also made mention about the cryptic order of the Magistrate to summon the accused, proof regarding claim and counter claim surfaced as detailed in Paragraphs 20 and 23 of the judgment. Supreme Court has explained facts of the case in detail to decide in favour of the petitioner therein who requested to terminate the proceeding under S.482 Cr.PC. Judicial discipline demands acceptance of Supreme Court’s judgments by the lower courts as the precedent insist as stated under Article 141 of the Constitution but if facts totally vary Court can give its own finding irrespective of the Supreme Court’s observation or order which may not apply to a case being decided by the lower courts on totally different set of facts, sometimes may lack even persuasive value. In the reported judgment High Court also discussed about the Explanations 1 and 2 under S.405 IPC which speak of an employer’s liability under the provisions of Provident Funds and Miscellaneous Provisions Act 1952 and Employees’ State Insurance Act 1948 which are applicable against an employer when he refuses to pay the employees contribution after deducting it from the wages/salary and retains the same-which amounts to entrustment. These explanations are introduced to safeguard the interest of oblivious employees, and no way relates to the reported judgment.
In the ruling rendered by the High Court there is no dispute or contra evidence regarding acceptance of money by the accused thus entrustment is proved. Promise to pay interest is not a point to be considered in favour of the swindler to hold that proof under S.405 is absent. Failure to repay the amount after receiving it makes out a case of breach of trust and the burden is only on the accused to disprove the case of prosecution.
Money laundering across the State by deceitful means is on the rise even in the cooperative sector. Enforcement Directorate takes up investigation when crores of rupees are misappropriated. Bogus companies and persons to get cash deposits with tempting promise of timely return of huge profit or interest luring greedy depositors, face prosecutions under the BUDS Act 2019 is no news now. Judgment of the High Court is a bolt from the blue to many who managed to wangle depositors and here the despair of the complainant is perceivable but Rajappan Assari the revision petitioner has the last laugh.
Co-Parenting – Need of the Day
By Leela R., Advocate, High Court of Kerala
24/01/2024Co-Parenting – Need of the Day
(By Leela R., Advocate, High Court of Kerala)
Marriage, the family and reproduction has been a key element of Civil society.
“Marriage” attempts to hold a man and woman to collective social standards including responsibility for the women they impregnate and the children they father, while also stringently hedging in the woman’s sexuality. In short, marriage has always demanded that both men and women sacrifice a considerable measure of individual freedom to act in the interest of the family. However, with the advance of progressivism and advent of post modern multiculturalism, divorce rates are increasing, making it vital to openly discuss and address the challenges that arise, especially when children are involved.
In this article, an attempt is being made to bring out the rights of the child in a broken marriage for parenthood and the right of the child for co-parenting benefits, having regards to the present law and in comparison with the right of the child guaranteed under the United Nations Convention on the Rights of the child.
While divorce legally ends a marriage, it doesn’t mean the end of the family for the child. It’s crucial to view divorce as the separation of partners, not the separation of a family unit. A child thrives in a healthy family environment, regardless of the parent’s marital status. Post-divorce, parents must work together to maintain a supportive and nurturing atmosphere for their children’s well-being.
In India, most often couples fighting for divorce forget about what’s best for the child and take on single parenting in rigidity against their spouse. Unfortunately, the power of the Court to make an order of guardianship under the Guardian’s and Wards Act grants power to the Court only to declare ‘a person’ as guardian. Hence, once the couple are estranged the custody is put with one of the party by the Courts generally and thus, denying the right of the other parent to be with the minor child and support the upbringing of the child.
Co-parenting after divorce can provide a healthy chance of living a normal life for the children. In India, where divorce reasons are mostly because of abuse or desertion, parents are always at fighting ends. This affects the upbringing of the child to a great extent. One should be very careful that the conflicts and anger between spouses should in no way affect the growth of child mentally. If the latest Census are taken the rate of use of drugs, alcohol among the young generation - the youngsters who are addict for drugs and alcohol are mostly from broken families. The broken family has also resulted in many youngsters deviating from good paths and ending into criminal activities. Broken family has been a cause for several disasters including child abuse. On many occasions, fighting parents only to satisfy their egos and gain support of the child, yield to any of their demands without noticing that they are moving on a wrong path. Many a times, genuine parents are denied even visitorial custody on account of the other parent who is having the custody of the child instigating into the minor mind vengeance against the other parent. The parent who so instigates vengeance in the minor mind forgets that instigating such vengeance also instigates poisons thoughts into the minor mind making him a socially deviant person.
The Apex Court and the various High Courts in the country have time and again come up with the question of custody and have expressed that “the child would perhaps be happiest if he could have both his parents, unfortunately the parents are unable to resolve their differences and stay together. Be that as it may, the child has a right to access both parents, and get the love and affection of both parents.”
In Anuj Chaturvedi v. Jyoti 1 the Apex Court held that the child has the right of love and affection of both parents and to have access of both their parents. The same was reiterated and confirmed by the Apex Court in the recent judgment in Himanshu Chordia v. Arushi Jain.2
In T.S.Ramesh v. Krithika,3 the Madras High Court has held that the child is bound to have the father’s love and guidance and mother’s care and affection which are the birth rights of every child.
THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
The United Nations convention on the rights of the child is an important agreement which envisages on the rights of the child in the world. The convention explains who children are, what are the rights of the children and the responsibilities of the Government to protect the rights of the children. The convention envisages that all rights are equally important and the same cannot be taken away from any child.
“The Convention on the Rights of the Child (CRC) was approved by the General Assembly of the United Nations on 20 November 1989. The Convention was formally opened for ratification on 26 January, 1990, the Government of India ratified the CRC on 11 December, 1992. It, however, has signed the Convention, thereby indicating general support for its principles and an intention not to take actions that would actively undermine those principles. The CRC is the most complete statement of child rights ever made. It takes the ten principles of the 1959 Declaration of the Rights of the Child, and expands them to 54 articles, of which 41 relate specifically to the rights of children, covering almost every aspect of a child’s life” 4 .
Article 6 of the United Nations Convention on the Rights of the Child lays emphasis on the life, survival and development of the child to ensure the life and safety of the children. Legislations such as Juvenile Justice Act, Prohibition of Child Labour Act, Guardians & Wards Act have been framed in the Indian Legislation. To ensure the survival and maintenance of the child Section 125 of the Code of Criminal Procedure Code, provisions on the Hindu Marriage Act, Hindu Maintenance & Adoption Act have been framed. Section 24
of the Guardians & Wards Act casts duties of the guardian to look and support for the health and education and such other matters of the child.
Article 9 of the United Nations Convention on the Rights of the Child specially provides the children shall not be separated from their parents against their will except by competent authority, if such separation is on the best interest of the child. It is with this object that the Juvenile Justice Act 2015 was created with special incorporation “child in need of care and protection” and “child in conflict with law”. Further, the Central Adoption Resource Authority (CARA) the nodal body for adoption of Indian Children is mandated to monitor and regulate “in-country and inter-country” adoptions. The provisions in the Juvenile Justice Act also creates space to ensure that even the parents of the children do not misuse the children for their personal use or abandon their children. The provisions are also made to codify all personal laws regarding adoption, maintenance and guardianship.
Article 10 of the Inter National Conventions provides that the children whose parents live in different countries should be allowed to move between those countries so that parents and children can stay in contact.
Article 18 of the Inter National Conventions provides that both parents have common responsibility for upbringing and development of their children. The best interest will be the basic concern.
Article 19 of the Inter National Conventions lays emphasis on the State to take legisla-tive, administrative, social and educational measures to protect all forms of violence, physical or mental injury or abuse, neglect, maltreatment or exploitation including sexual exploitation when alone or while in the care of the parents or any other person who has the care of the child.
India who is the signatory to the convention of the Rights of the Child has made effort to protect the right of the child by making appropriate changes in the existing legislation as well as bringing up new legislations to ensure the safety of the child in accordance to the convention on rights of the child.
National Laws and the Inter National Conventions envisage and try to protect the rights of the children. But if the parents are head on hoer against each other despite there being laws and provisions to take care of the rights of the children practically it will fail and violate the rights of the child guaranteed under the Inter National Conventions and the National Legislations. The children who are the sufferers in broken marriage are often made to suffer by sitting for long hours in the court premises, made to face the Judges, the Lawyers and the Police in their uniforms, bound to carry on their mental trauma and torture of prolonged fights between their parents inside the court premises as well as during custody hours. Unfortunately, no provisions has been made in the Family Courts Act or in the Rules governing the Family Court to protect such hardships being faced by the children who for no fault of theirs are constrained to undergo such traumas.
The present system does not provide for any Child Psychologist and the children who are unable to speak their heart fearing the wrath of the erring parent in whose custody they may presently be often end up suppressing their true emotions which neither their near and dear ones ever realised. This sometimes results in triggering the other parent from expressing his love, support to the child which often leads for the improper growth of the child, measures like Section 125 Cr.P.C. add fury sometimes when the custody of the children are refused to the father by the mother or vice versa. Often the custody of the children are not disturbed by the Courts and this leads to the battle of egos between the parents which devast the future of the child.
CONCEPT OF CO-PARENTING
If a good citizen or member of a society has to be made it is possible by the parents alone and not by others including surrounding circumstances. A single parent cannot discharge the responsibilities of the parents as what is expected from each of the parents is different as a role of each of the parents is also distinct. The foreign nations have always looked into and appreciated the concept of family in Indian society only because of the understanding that for a better future of the nation, investment in the younger generation is what is needed and most necessarily bringing the character in the younger generation is what will built a better world. However, in India due to the advent of western culture more number of nuclear family and more and more of divorce are leading to broken families and in-secured children who are torn between two warring parents with regard to the guardianship.
Divorced couples should take up joint custody of the child, putting aside their differences for the sake of the upbringing of the child.
Generally, after a divorce or judicial separation, the children need to be given a definite place of residence with either of the parents in case of children below the age of 18 years.
Every parent has certain rights and duties towards their children, which becomes the main point of contention on separation.
Under the Indian Law, the welfare of the child is given the utmost importance in settling a matter of child custody. The parents can present their version of events and project their case from their perspective. But the Judge will eventually rule on the basis of what is “in the best interest of the child” and which one of the parents is most suited to address those needs. The parent who can provide the child with better financial support is usually the one who is granted custody of the child. But there may be other instances where the child may have special needs which are being addressed by one among the particular parent, in such cases, the Judge may award a more customised custody solution. This however, restricts the custody to one parent and denies the right of the other. The child’s fundamental right of the love and affection of both the parents cannot be equally satisfied or sometimes equated by a judicial order. This in turn actually results in trauma to some children. But, it is unavoidable as the Courts have to come to some conclusion with the available materials and for “the best interest of the child”.
Types Of Child Custody
Physical custody:
The court declares either of the parents to be the custodial parent. It is this parent with which the child will live and be brought up. Usually, if the divorce is amicable or mutual, then the parent who has not been granted physical custody is allowed certain visitation rights.
Joint Physical Custody:
This type of custody is a product of more recent developments. When both the parents come to a consensus as far as raising the child is concerned, the Judge may award legal custody to both the parents. However, the physical custody is overtaken by either of the parents, making that parent the primary caretaker.
Sole Custody:
In cases where one parent is declared unfit by the court for obvious reasons the other parent receives exclusive and sole custody of the child. In such cases, visitation rights for the secondary spouse is not usually allowed.
Third-party custody:
In certain cases, it may be proven that neither parents are fit to raise the child or rather there is a third party, who is usually a close relative, who is capable of taking better care of the child and is voluntarily willing to do so, then the court may grant custody to the third party.
The concept of sole custody is not much promoted in Indian Judiciary. Similarly, the concept of third party custody also is not promoted. The concept of third party custody is given or utilized by the court only in cases of Juveniles in conflict with law and in certain cases, when it comes to child in need of care and protection. The Child Welfare Committees are mostly concerned with the third party custody.
The need for evolution and incorporation of co-parenting as law in custody matters “Co-parenting” (sometimes called “shared parenting”) is when both parents work together as a team to raise their children, even after the marriage or romantic relationship is over.
The main reason to work at co-parenting is that it helps children deal with all the changes that happen when their parents are no longer together.
The Supreme Court, in 2019, ruled that ‘a child has the right to affection of both his parents’.
In this context, the concept of shared parenting can help the child. However, it is not an option in India, due to the archaic laws.
Shared parenting is when children are brought up with the love and guidance of both parents following a separation.
All children need the love and support of both their mother and father. Parents who live apart can still provide these things if they work together and put anger and conflict aside.
How to make co-parenting a reality?
Communicating With the Other Parent
All kids are part mom and part dad, so hearing hurtful things about either parent, especially hearing them from a parent, can hurt the kids’ self-esteem. Remember that the kids love both their parents and don’t want to hear bad things about either of them.
• Even though the marriage or romantic relationship is over, one can focus on the parenting relationship. What matters most now is –The KIDS!!
• Arguing about the old relationship only makes it harder to work together as parents for the kids.
Hence, the first and the foremost step for co-parenting is to take an effort to communicate with the other spouse, forgetting the differences and only concerned about the children. The parting parents for the sake of children should sacrifice their egos and communicate the details of the children with each other, so that the child does not stand as a mouthpiece for both.
All kids need both dad and mom to participate actively in their lives.
• All kids will do better and be happier when they have the love and support of both parents, even if it’s from two different houses.
• All kids need to see that parents can talk with respect to each other.
• Communicating for the sake of children can double check what the kids are telling the parent - Sometimes children in this situation will say things that may not be true about what goes on in the other parent’s home - like, they get to use curse words at dad’s house, or that mom thinks that school is a waste of time. Communicating often with the other parent will help one determine whether or not these things are true.
• Parents will both feel more involved in their kids’ lives that by time the egos will slowly shed and will lead to a better quality in the child as a future citizen. Staying in communication helps to know what the kids are up to, even when they’re with the other parent.
• Regular communication can help the parent keep little misunderstandings from becoming big conflict
• Respect, or at least try to tolerate, the other parent’s parenting decisions – Sometimes the parent who is not having the regular custody may be the one who could emotionally or financially aid what’s best for the kids.
• Set up a regular time to talk with the other parent about the kids and permit the kids to talk freely with the other parent. This may not be fun or convenient, but it’s important.
• Remember to make important decisions about the kids together.
By establishing a collaborative approach, divorced parents can create a nurturing and stable environment for their children. One of the most significant benefits of co-parenting after divorce is providing emotional stability for children. When both parents actively participate in their child’s life, it reinforces the sense of security and love. Children are less likely to feel abandoned or neglected, as they can maintain a close relationship with both parents. This stability helps them cope better with the divorce and build healthy relationships in the future. The co-parenting will also help to reduce the risk of the child falling into the trap of drug/sexual abuse. A regular check and communication between the divorced parents for the sake of children will surely instil in the mind of the child a safety and security as well as a fear of being found if he chooses the wrong way that the children do not tend to choose the wrong path. Broken families have been the cause for rise in crime rates. If the system of co-parenting is effectively introduced a risk of children getting involved into criminal activities can be reduced to a great extent.
Shared Parenting Responsibilities:
Co-parenting involves shared parenting responsibilities, which can alleviate some of the burdens of single-parenting. By working together, parents can divide tasks such as school pickups, extracurricular activities, medical appointments, and other obligations. This arrangement allows both parents to have quality time with their children while also fostering a sense of equality in parenting. The concept of shared parenting will also ease the mind of the child as it will not give an insecure feel for the child or tension of loosing the other parent’s love and affection.
Consistency and Routine:
Co-parenting helps the children to thrive in a stable and consistent environment. Co-parenting encourages the development of routines and consistent rules between households. When parents collaborate and maintain similar schedules, expectations, and values, children can adapt more easily to the new family dynamic. Consistency in parenting styles helps children feel secure and minimizes confusion and conflict.
Effective Communication and Conflict Resolution:
Successful co-parenting requires effective communication and conflict resolution skills. As already discussed above, by learning to communicate respectfully and openly, parents can discuss important matters regarding their children’s well-being. This includes sharing information about school, health, and emotional needs. When conflicts arise, a collaborative approach allows parents to find compromises and prioritize the best interests of their children.
Positive Role Modelling:
When we speak about co-parenting it is not an easy in all cases, for instances, when one of the partner is an abuser (physical/sexual), narcissistic or a person with personality disorder, then it is not easy to communicate or discuss the concept of co-parenting with such partners. In such cases, the concept of sole parenting is the only way out. However, in other cases, where the divorce has resulted only on account of ego clashes/family interferences etc., ignoring the differences and incompatibilities if the parents are ready and willing to opt co-parenting, then Co-parenting provides an opportunity for parents to be positive role models for their children, even after divorce. By demonstrating co-operation, respect, and compromise, parents can teach their children valuable life skills. Children who witness healthy co-parenting are more likely to develop strong relationships, effective communication skills, and problem-solving abilities.
Co-parenting is not easy in all cases.
Co-parenting problems can be triggered or turn out to be ineffective on certain specific issue, such as:
a. One of the parent wants to relocate overseas with the children leaving the other parent feeling marginalised and cut off from their children
b. A parent meeting a new partner or getting remarried
c. A parent having another child with a new partner so upsetting the family dynamics and routines
d. A child experiencing health issues such as an eating disorder or a child questioning their gender
e. A child saying that they dislike a parent’s partner or his or her children
f. One parent getting a new job that means the family will need to move house making a change in contact arrangements necessary
g. A parent losing their job and experiencing financial hardship or worrying about the cost of living crisis.
In situations discussed above, it may not be practical to effectively implement the concept of Co-parenting. However, if the parents have the will to opt for Co-parenting, by certain sacrifices and adjustments, it can turn into a reality.
Modes for making Co-parenting a reality
Be practical– Parents can fall out about the basics so think about handovers, school uniforms (who is washing it), who is helping with the school homework, the communication (sometimes there are complaints about daily texts and in other cases complaints about lack of communication) and house rules (bedtimes, screen times, homework rules, food, and diet). Communicate on the needs of the child and make practical outcomes to fill the gaps during exchange of children. Do not consider the children as property, but as human beings who need the love, security and affection of both parents.
Think long term – While the parent having the major custody of the child, may be struggling to just get through the week because of work and childcare commitments, it can be best to think long term of how to reach an agreement over sharing school holidays, birthdays, Christmas, and other special or religious occasions so that the children know in advance their holiday schedules as well as can plan their holidays, enjoy the company of the other parent.
Be flexible – There may be times when the parent to whom custody is given falls sick, meets with accident, looks job etc., and may need the help of other parent to take care of the child be flexible don’t stick to previous arrangement.
The Apex Court has recently held that “a child has the right to love and affection of both parents and to have access to both their parents”.
Co-parenting is a concept which does not now find a place in “Guardians and Wards Act” presently. However, the Apex Court and all the High Courts have in the verdicts considering “Welfare of the child as the paramount interest” held that love and affection of both parents is the fundamental right of the child. India is a party to the Convention on the Rights of the Child. Article 19 of the United Nations Convention on the Rights of the Child casts a duty on the State to make legislations to protect the rights guaranteed under the Convention. Right to family reunification is a Right guaranteed under the United Nations Convention on the Rights of the Child. The other nations upholding the right have ensured to keep co-parenting as an essential system. In India also we have laws to protect the Rights of the Children for family. However, practically when a custody order is passed, the other parent ignoring the concept of co-parenting tries to hold the child as an independent property and refuses to share the child with the other parent often that unless the usage of the term co-parenting is expressly brought into legislation as well as incorporated in the custody orders, the Right of the Child for family reunification will often remain in papers and the child will be bound to suffer the trauma in the Court premises till he attains majority. Co-parenting is the need of the day with educated parents and broad minded Courts. It is not far that the Law on “Co-parenting” becomes a reality.
Foot Note
1. 2019 (4) KLT OnLine 3330 (SC) = 2019 Latest Caselaw 964 (SC).
2. 2022 (3) KLT OnLine 1228 (SC).
3. 2023 KLT OnLine 2163 (Mad.) = 2023 Latest Caselaw 2027 (Mad.).
4.Report of the Sub Committee on United Nations Convention on the Rights of the Child.
Dont’ Crush the Life Force of A Prisoner, Don’t Play with His Rights – Supreme Court Warned Kerala Government
By G. Shaheed, Former Legal Correspondent, Mathrubhumi
20/01/2024Dont’ Crush the Life Force of A Prisoner, Don’t Play with His Rights –
Supreme Court Warned Kerala Government
(By G.Shaheed, Former Legal Correspondent and Chief of Bureau of Mathrubhimi in Cochin and also worked in New Delhi as Chief Legal Correspondent covering Supreme Court.)
“Release the petitioner prisoner, with immediate effect in the interest of justice. It is ordered accordingly”.
The judgment of the Supreme Court sounded like an ultimatum to the Kerala Government indicting the bureaucrats of the Home Ministry for their insidious attacks in trampling upon the rights guaranteed under Article 14 to a prisoner that was fortified by the historic Judgment in Sunil Batra case in 19791, the Division Bench then headed by Justice V.R.KRISHNA IYER. While perusing meticulously the files and jail records of the prisoner in this case submitted by the Government the Court was deeply disturbed by the calculated and repeated injustice shown to the prisoner even setting at naught the directions given by the Supreme Court on previous occasions in prisoners’ cases which were the law of the land according to the Constitution. Even the premature release that was available to him was thwarted by the evil designs of the bureaucracy. So the Court was compelled to draw an irresistible conclusion that the prisoner petitioner shall not be in jail even for a moment and was set at liberty, The order was passed accordingly.
The judgment was delivered by the Supreme Court Division Bench consisting of Justice S.Ravindra Bhat and Justice Dipankar Datta on 21.9.2023. at 10.30 A.M.2
The Kerala Government acted swiftly. That day by 7 p.m. though it was an odd time for the Open Jail in Nettukaltheri away from Thiruvananthapuram City, Its huge iron gates were flung open to free Koovely Joseph aged 67 of Angamaly in Ernakulam district who was undergoing life imprisonment since 1998. The police case was that he had committed murder of his sister in law in 1996. The Trial Court Trichur Sessions Court acquitted him for want of evidence for murder but on appeal by the
State the High Court in 1998 reversed the trial court judgment and convicted and sentenced him to life imprisonment. The Supreme Court upheld that judgment, three years later. For the first four years Joseph was in Kannur Central Jail and later was shifted to open jail in Trivandrum. The inmates of the open jail work in the vegetable gardens, cattle farms and rubber tapping units. Some are carpenters and skilled workers. They earn ` 320 per day as wages. While Joseph was in the vegetable garden the warder called him to his office and said. ‘Joseph you have been freed by an order of the Supreme Court today. My superior officer has informed me. When do you want to go home ? Joseph replied. I wish to go today itself.
Joseph got ready. By 7 p.m. the warder handed over `15,000 to Joseph that was due to him as wages. He gratefully accepted it. He met most of the coprisoners and officials of the jail, the jail bade him goodbye. It is for the first time in the history of the open jail since its establishment in 1962, its iron gates were opened at an odd hour of 7 p.m. when all lights at that time are turned off and inmates fall to sleep.
‘ 26 Years went like a lightning. It seems all had happened just the other day. ‘JOSEPH told me when I met him at his residence after a few days. He was euphoric for a Malayalee advocate in Supreme Court Mathew Adolf had championed his case with dedication and was fully confident to win, he did a masterful work and the Apex Court was fully convinced of the sad plight of the prisoner. That happened so that the gates of the prison were opened for his exit armed with a historic judgment to protect the rights of the prisoners and treat them more humanely. This judgment imbibes the spirit of Sunil Batra case, that had thundered against the other world in Tihar Jail under the nose of the Union Home Ministry when the warders resorted to primitive methods of torture and a chosen few in the jail had privilege to enjoy women and wine, narcotics and blessed facilities. It was sheer anarchy that prevailed there, so shocking perpetrated by a few warders who were close to centres of power and were fully backed by political patrons. A prisoner named Sunil Batra had sent a complaint to the Apex Court that was treated as a Writ Petition and the Court acted. It sent shock waves as the Court cleaned the Augean stables. That landmark judgment paved the way for prison reforms and alerting those in power. The judgment declared that a prisoner is a human being and not an animal and he does not lose his Fundamental Rights when entering the jail. The court declared that rights guaranteed under the Constitution can be enjoyed by a prisoner and Court fortified Articles 14 and 21 to a great extent and declared he has right to live with dignity. As well he can resort to Article 32 to knock at the door of the ApexCourt when his fundamental rights are violated.
Advocate Mathew Adolf prepared the writ under Article 32 and filed it two years back.
Joseph had no documents with him, he had a brief discussion with the lawyer when he had visited the Open Jail where he had a few clients. All the documents necessary for Joseph’ s writ had to be collected by him after toiling and toiling and do rather a research work perusing hundreds of Judgments the Apex Court had delivered since Sunil Batra case that had revolutionised prison reforms and protected the rights of the prisoners. Many courts around the world had hailed Indian judgments related to penology and reformation of the prisoners. Drawing inspiration from Sunil Batra case and others in the succeeding years many State High Courts followed its spirit. Prison reforms were initiated even in Bihar that had primitive jails and had hit headlines in the media when the notorious Bhagalpur blinding case3was known to public. Justice P.Subramnonian Poti, Chief Justice of Kerala High Court4acted when a few prisoners complained. He visited the Kannur Central Jail and heard many of them and took remedial measures, the wages of the working prisoners were increased.The Jail DGP was alerted by the Court and complaint boxes were installed in the prisons. They were opened under the supervision of District Judges and most of them were referred to the High Court for action as well.
WHY JOSEPH WAS NOT RELEASED ?
The Supreme Court while hearing the petition of Joseph in June 2023 was shocked to see the the cruel indifference adopted towards him by the bureaucrats in the Home Ministry. He was fully eligible for remission and premature release as per Section 433 A of the Cr.P.C. Moreover the Jail Advisory Committee had on three occasions unanimously recommended his premature release on 10.1.2017, 26.2.020 and 7.3.2022. The Judges of the Division Bench were so surprised that without assigning any reason those recommendations were rejected as evidenced from the files.
Why it happened ? The Court asked the counsel appearing for the State of Kerala. Then the reply was that the decision whether to grant remission or not to a prisoner is an act exercising discretion which solely fell within the domain of the executive. The prisoner cannot claim a fundamental right to release.
But the Apex Court had to reject it and observed ‘The Government has simply rejected it all three times. It is patently unsustainable and warrants intervention. As per the records produced by the State he has earned eight years of remission thus demonstrating good behaviour in the jail.The discussion in the minutes of the meeting of the Jail Advisory Committee are also positive and showing that he was hardworking, disciplined and a reformed inmate so there is no other way but to release him immediately in the interest of justice, ordered accordingly. The Court felt that the rejection of the recommendations of the Jail Advisory Committee was a colourable exercise of power, wholly illegal that violates the prisoners rights under Article 14. The stand of the petitioner was that many inmates who have completed fourteen years of imprisonment have been released while he was singled out though he was fully eligible for release.Advocate. Mathew Adolf was of the view that due to the timely interference of the court his petition under Article 32 was treated like a habeas corpus petition that ultimately freed the prisoner from incarceration looking like illegal detention.
The Court had reminded the Government that when taking a decision it has to be fair, reasonable and not arbitrary. The court has emphasised it many judgments. The recent judgment was delivered by a Division Bench headed by the Chief Justice in August 2021 when it was observed that decisions on remissions shall be fair or the prisoner can allege that his rights under Article 14 has been violated and the court has to scrutinise that. Usually when prisoners approach the court for release it generally directs the Government to consider the same, on rare occasions only Court passes orders to release when evidences are there to substantiate arbitrary and illegal stand of the Government some unknown hands in the bureaucracy were thwarting the reasonable claims of Joseph for premature release.
So the court in the judgment made a very serious observation’.
‘ The petitioner has already undergone 26 years of imprisonment. We do not redirect the petitioner to undergo yet another consideration before the Jail Advisory Committee. It would be a cruel outcome like being granted only a salve to fight a raging fire in the name of procedure. The grand vision of the rule of law and the idea of fairness is then will be swept away at the altar of procedure, which this Court has repeatedly held to be a handmaiden of justice.
At the time when petition was heard the State Government had a different argument also apart from what was stated in the counter affidavit. The court was informed of an executive order the Government had issued on 4.6.2022. It is by the Home Department. It was held by the Government that persons who committed murder of women and children and persons who committed murder with rape is one of the catogeries of prisoners who are not eligible for premature release in future. That is they are excluded from the purview of remission,
The Apex Court did not approve that. The court said that it is by an executive order such an exclusion is made. That directive or guideline is over and above the Act. Blanket exclusion of certain offences from the scope of grant of remission, especially by way of an executive policy is not only arbitrary but turns the ideals of reformation that runs through the criminal justice system on its head. Numerous judgments of this Court have elaborated on the penological goal of reformation and rehabilitation, being the cornerstone of our criminal justice system rather than retribution.
The impact of applying an executive direction to guide the executive’s discretion would be that any progress made by a long term convict would be rendered naught leaving them feeling hopeless and condemned to an indefinite period of incarceration.
That executive order was thus declared arbitrary by the Court. The Court made a further clarification that that the Government cannot by way of such an order take such a role for crimes as it deems fit. The Court expressed the view that while the executive order is not directly challenged, in its considered opinion it merits comment and a note of caution. The court naturally went against it. The counsel for the prisoner had opposed the executive order but his arguments for the release of his client was centred on Kerala Jail Rules prevalent at the time of his conviction, when he was sentenced to life imprisonment by the High Court in 1998 that was done reversing the acquittal by the trial court.
The Court observed that the executive order was really inflexible because it is based on a crime committed in the distant past. It can result in the real danger of overlooking the reformative potential of each individual convict,the practical impact of an executive order which bars consideration of a premature release of a prisoner having undergone 20 or 25 years of imprisonment based entirely on the nature of crime committed in the distant past would be to crush the life force out of such individual altogether. Such persons will never see freedom and would die within the prison walls.
A person who entered the prison long back may not be the same person after a long period of incarceration. The executive order denies the real impact of prison good behaviour and other relevant factors and result in violation of Article 14. Excluding the relief of premature relief to prisoners who have served extremely long periods of incarceration not only crushes their spirit and instills despair but signifies society’s resolve to be harsh and unforgiving.The idea of rewarding a prisoner for good conduct is entirely negated, the Court said.
WHAT WAS THE REMISSION POLICY WHEN JOSEPH WAS CONVICTED?
The argument of the counsel for the prisoner was centred around the remission policy prevalent in Kerala at the time of conviction of the petitioner, in 1998. That was fully considered by the court.
Kerala got Statehood in 1956 only. Before that there was the Travancore Cochin Prison Act that came into force in 1950. The Kerala Prison and Correctional Services Act came into force in 2010. The Kerala Government had enacted Kerala Prison Rules in 1958 But as per the 2010. Act the 1958 rules were to continue till the commencement of the new rules. The new rules were in force only in 2014. The 1958 rules were in force when the petitioner was convicted in 1998.
The counsel for the petitioner drew the court’s attention to the Rules of 1958 that stipulates the release of a prisoner can be considered after 14 years of imprisonment. and that the inmate shall be released after completion of 20 years of the sentence and the recommendations of the NHRC which prescribes mandatory release after 25 years of sentence.
The counsel further argued that even in terms of Rule 277 of the Prison Rule of 2014 the prisoner is entitled to be released after 20 years of imprisonment. It was pointed out that the prisoner has undergone 26 years of actual imprisonment at this juncture, and it was manifestly illegal to keep him incarcerated in perpetuity. Moreover the counsel vehemently argued that the Executive order came in 2022 by which time he had already undergone 25 years of imprisonment and the order could not override the statutory provision. The argument of the counsel that the petitioner had a legal right to be considered for remission given the safeguards of a convict under Articles 20 and 21 of the Constitution as well his legal right was guaranteed by the Kerala Prison Act and Rules. It was accepted by the court.
As per reply received from the jail under RTI Act it was pointed out to the Court that from 2000 to 2016 a total of 28 convicts sentenced to life imprisonment in the murder of women had been granted premature release. However, despite being recommended by the Jail Advisory Committee the Government rejected without assigning any reason, this is a ground to set aside the Government order rejecting release, that argument weighed wells with the Court. The court made it clear that the remission policy prevailing on the date of conviction is to be applied in a given case,that was a ground to release the petitioner accepting the arguments of the counsel for the petitioner. The court follows an earlier decision in State of Haryana v. Raj Kumar of 20105. That approach was followed by the court inRajo v. State of Bihar in 20236The Court clarified that when the petitioner was convicted in 1998 by the High Court, the 1958 Rules were in force in Kerala, that enables to release of the petitioner.
The court observed that the Jail Advisory Committee was headed by the Jail DGP. It had members like District Judge, District Collector, District Police Chief, Probation Officer and three non official members, they had taken a holistic view of the petitioner and recommended release, still Government rejected it, that was the unkindest cut, the court felt and was a ground for immediate release of the petitioner.
Advocate Mathew Adolf is of the view that this landmark judgment will enable many prisoners who have undergone 14 years of imprisonment or more, they can approach the Government citing the dictum laid down as well observations and declaring the 2022 executive order as arbitrary by the Court. The Government is bound to act as it cannot take arbitrary decisions in matters of premature release. As well any prisoner entitled to release can approach the court if the Government declines to act.
This judgment is another voice of the Constitution that saved a prisoner. Otherwise by the executive order of 2022, he would have died behind the bars.
Foot Notes
1. 1980 KLT OnLine 1046 (SC) -Sunil Batra v. Delhi Administration.
2. 2023 KLT OnLine 1025 (SC) -- Joseph v. State of Kerala.
3. 1981 KLT OnLine 1025 (SC) -Khatri v. State of Bihar.
4. 1983 KLT 512 - In the Matter of Prison Reforms Enchancement of Wages of Prisoners.
5. 2010 (4) KLT OnLine 1034 (P. & H.)
6. 2023 KLT OnLine 1730 (SC) = 2023 (5) KLT SN 59 (C.No. 34) SC.