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There is nothing greater in earth than motherly love; High Court in the case of Woman Accused of Sexually Abusing Son

The petitioner is the mother of four minor children. She has been booked by Kadakkavoor police for having committed offences punishable under Section 8 read with Section 7, Section 12 read with 11 (i) (ii) and Section 10 read with Section 9 (1),(m),(n) of Protection of Children from Sexual Offences Act (for short ’POCSO Act’).

Allegations of the Prosecution

The case as put forth by the prosecution briefly stated, is as under: The victim is the 2nd child of the petitioner born on 26.3.2007.POCSO On several occasions from the age of 10 years till 10.12.2019 the victim/child was sexually abused by her for her sexual satisfaction at her residence by disrobing him and touching on his private parts. She also disrobed herself and exhibited her nude body before him and compelled him to kiss on her naked body and thus committed sexual assault on him. Thereby, she committed the aforesaid offences.

Arguments of the Accused

The learned counsel for the petitioner submitted that the husband of petitioner is living with another lady having two children, she was compelled to leave her matrimonial home and was living with her minor children at her parental home.

She then filed a case for maintenance of herself and her children and another case for permanent custody of her minor children before the Family Court, Attingal against her husband. Immediately after the filing of the cases, he had forcefully taken her three children from her house and used the 2nd child as a tool to foist this false case against her with ulterior motives. It is vehemently submitted by the learned counsel that the petitioner is a poor lady working in a private firm for livelihood as she has been abandoned by her husband because of his relationship with the another lady. She has not committed any of the offences as alleged but in order to defeat her legitimate claim for maintenance and custody of children, this case has been initiated raising such a cruel allegation against her by misusing her own minor son.

Bail Granted by High Court

The Kerala High Court has granted bail1) to the accused mother in the case of molesting her son. The court also directed that a special team headed by a woman IPS officer be formed to look into the complaint. The court observed that in this case the sanctity of motherhood was completly neglected.

The court also has directed the police to probe whether the child involved in the case was brainwashed or tutored by anyone to make such wild allegations against his mother.

Findings of the Court

Court while granting bail to the mother expressed its doubts over the prosecution version and inactions on the earlier complaints of the mother in the following words:

It is significant to note that the petitioner filed complaints before the Jumaath Committee as early as on 28.4.2019 regarding the harassment suffered by her from the hands of her husband. She had also filed complaint against her husband regarding his cruel treatment towards her as well his failure to provide maintenance to herself and her children and also about his illegal connection with a lady before the Dy.S.P., Attingal on 8.10.2019. That was immediately after she left her matrimonial home with her minor children. But no action was seen taken on her complaint.

Thereafter, she had approached the Family Court to have custody of her four minor children. She also moved the very same court claiming maintenance for herself and for four minor children as he was not providing anything though he was having sufficient income from his business. So, it appears that from the month of April, 2019 onwards she was approaching various authorities including the Dy.S.P., Attingal for redressal of her grievance. But unfortunately the investigating agency has not verified all those facts or made any serious inquiry regarding the same. It appears from the CD that the husband and wife are at loggerheads with each other and the husband had removed her minor children from her custody without her consent or knowledge even when the petition filed by her for custody was pending before the Family Court and he took all of them (except the third child) to Sharjah.

When the relationship of the petitioner and her husband was not cordial and they were at loggerheads and cases and complaints initiated by the petitioner that too for custody of the children and for maintenance were pending, the investigating agency should not have jumped into the conclusion to register this case against the petitioner, especially when such an unusual compliant was raised against a mother. The investigating agency failed to verify the veracity of the version given by the child and failed to ascertain whether the complaint lodged against the petitioner was a genuine one or not.

A preliminary inquiry to ascertain the truth or otherwise of the allegation ought to have been conducted by the investigating agency.

The delay in lodging a complaint, though the father of the child himself has stated that they came down to Kerala to have counseling of the victim/child and to initiate proceedings against this petitioner, their failure to proceed immediately after reaching Kerala have not been properly explained and the investigating agency has not given any serious attention to those aspects. So also, whether the child was tutored or brainwashed by the father or the lady who was residing with his father without divorcing the petitioner, was not probed into by the investigating agency Of course, the investigation is at the initial stage. So, the investigating agency has to go deep into all those aspects to unearth the truth and ascertain the genuineness of the statement of the minor child against the petitioner.

As mentioned above, it is also to be noted that the minor child was a school going student when he was shifted to Sharjah. But, the father has not made any arrangements to continue his formal education. Certainly, he was admitted in a Madrassa to study Holy Quran.

Order of the Court

The High Court granted bail to the mother in the Kadakkavur molestation case on strict conditions after finding that she need not be questioned further in custody. Bail is conditional on not trying to influence the investigation. The court also ordered that

  • The progress report of the investigation should be submitted to the court.
  • a medical board be set up to examine the child's mental and physical health.
  • There should be a pediatrician and a mental health professional on the medical board.
  • if the inquiry team deems it necessary, the child in the custody of the father can be transferred to the custody of the Child Welfare Committee.

The court observed that the incident was unheard of so far and ruled that the sanctity of motherhood had been completely neglected in this case. Motherhood is when a baby is born in the womb. There is no love on earth as great as motherly love.

But Justice V. Shersey said in her order that no woman who commits such a heinous crime deserves to be called a mother.

Bail Application 602/2021

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