NHRC – DRAFT GUIDELINES FOR SPEEDY DISPOSAL OF CHILD RAPE CASES.

(i) The complaint relating to child rape cases shall be recorded promptly as well as accurately. The complaint can be filed by the victim or an eyewitness or anyone, including a representative of non-governmental organization, who has received information of the commission of the offence. The case should be taken as follows:

a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.

(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;

(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;

(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;

(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;

(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;

(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;

(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;

(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.

TRIAL COURT

i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;

ii) Atmosphere in the court should be child friendly;

iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;

iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.

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Govt drags feet on ‘coming-of-age’ law

13 Jul 2007, 0320 hrs IST,Dhananjay Mahapatra,TNN

NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.

Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.

The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.

The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years

The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry

However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age

Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years

The Indian Majority Act says a person is a major if he/she has completed 18 years

These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged “Romeos” to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.

On the other hand, the ostensible concern of high courts which ruled on 15 being the “age of discretion” was whether intercourse in an “underage” marriage could amount to the criminal offence of rape given that the girl had consented to marriage.

The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.

In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the “age of discretion”.

During hearing of the NCW petition, the apex court took a “humanitarian” approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.

Adoption norms to be streamlined

July 11,Hindustan Times

The government, in a new set of regulations for child adoption, have proposed that parents who have given their children up for adoption cannot claim them back again.

The draft guidelines on the adoption of Indian children without parental care, released on Wednesday, proposes to bring adoption of orphaned, abandoned or surrendered children under the Juvenile Justice Act, 2006, thereby giving legal sanctity to the adoption process.

JK Mittal, chairperson of the Central Adoption Resource Agency (CARA), said: “Once child adoption comes under the JJ Act, there will be uniformity in the child adoption process in the country.

Secondly, adoption will mean legal separation of the child from his or her biological parents.”

Under the new guidelines, the time required for adoption has been reduced to three months from the existing six months. “The courts will have to settle adoption claims in two months as per the JJ Act,” Mittal said.

The government also wants to adopt the international child adoption standards. For this, Hague convention regulations have been incorporated in the proposed guidelines. It will result in the child getting citizenship immediately after touching the country of his or her adoption. Normally, it takes two-three months.

Inter-country adoption will not be allowed through an agency anymore. Foreigners will have to apply directly to CARA, which will then direct them to a registered agency for child adoption. “It will break the nexus between agencies,” Mittal said.

The guidelines also propose mandatory state government registration of all childcare homes. Women and Child Development Minister Renuka Chowdhury said the Centre will make HIV/AIDS test mandatory for all children admitted by the adoption agencies. CARA will also create a central data bank on children for adoption within India and outside.