New Delhi: “When I think about him, I get very angry,” says 18-year-old Radhika*. “Many memories come back to me. But I also feel scared.”
Radhika claims that her “nana”— her maternal grandmother’s domestic partner— sexually assaulted her when she was just about 10 years old. The first information report (FIR) from the time says he allegedly penetrated her digitally and tried to rape her over the course of three days in November 2015.
He also warned her to keep quiet, threatening to slit the throats of Radhika and her grandmother and throw them into the Ganga River, says the FIR, seen by ThePrint.
Radhika did not stay quiet, but like many other victims of incestuous abuse, she has been forced to navigate immense familial pressure and societal stigma in her quest for justice under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Her case, which has gone through many ups and downs — including Radhika turning hostile for a while — is currently pending before a Delhi court.
Under POCSO, incest cases are those perpetrated by relatives through blood, adoption, or guardianship, or by those inhabiting the same domestic household, such as a parent’s romantic partner.
Sexual assaults in this category are considered “aggravated” offences, inviting higher punishments.
For aggravated penetrative sexual assault, the minimum punishment is 20 years, and could go up to life imprisonment or the death penalty. For aggravated sexual assault, a convict faces five to seven years of imprisonment.
According to the latest data from the National Crime Records Bureau (NCRB), family members were accused in 9 per cent of all the POCSO cases registered in 2021.
Cases of familial rape and sexual abuse, though, are notoriously underreported. Last December, Chief Justice of India D.Y. Chandrachud touched upon this during his inaugural address on the National Stakeholders Consultation on the POCSO Act, 2012.
Emphasising that the “so-called honour” of the family should not be prioritised over the best interests of the child, he said that “the state must encourage families to report cases of abuse even where the perpetrator is a family member”.
However, experts point out that incest cases are “difficult and tricky to handle”, with child victims often struggling under pressure from close family members to withdraw their complaints, for reasons ranging from “honour” to financial constraints if the alleged offender is a breadwinner.
In light of these complex realities of incest cases, some experts advocate for an alternative approach to the traditional criminal justice system.
Known as “restorative justice”, this approach promotes victim-offender dialogue to foster healing and reconciliation between victims and their abusers. The effectiveness of this approach is a matter of debate, but proponents argue that having restorative justice as an option might make it easier for victims to break their silence.
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Radhika’s story— ‘He used to tell me he has reformed’
Even before the alleged sexual assault, Radhika did not have an easy childhood. Her parents separated when she was young and her mother remarried in 2014. Court documents indicate that the stepfather was abusive towards her and her mother.
Radhika is not keen to discuss what happened with her “nana“, but the FIR says that the assault took place when she went for a visit to her grandparents’ home in November 2015.
Shortly thereafter, she informed her mother who helped her file a complaint with the police.
Subsequently, her nana was booked under Section 4 of the POCSO Act, along with Sections 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code.
However, court documents show that the fallout was severe for Radhika and her mother. Both of them were allegedly thrown out of their house by Radhika’s stepfather for filing the complaint.
Despite this, Radhika and her mother stayed the course.
By July 2016, Radhika’s examination and cross-examination had been completed in the court, and she had reiterated her allegations against her nana.
However, things went downhill when her mother passed away in February 2018.
Radhika, barely a teenager, found herself in an impossible situation. Her stepfather refused to take custody of her, forcing her to move in with her nani. Her nana was still lodged in jail.
At the time, Radhika was almost penniless. Court documents show that she had been granted an interim compensation of Rs 30,000 but her stepfather allegedly appropriated all of it.
Then, within months of moving in with her grandmother, Radhika seemed to have a change of heart.
In July 2018, a letter signed by Radhika was sent to the deputy commissioner of police (DCP), Delhi South, claiming that she had filed the FIR against her nana at the behest of her stepfather.
In February 2019, the nana’s lawyer submitted an application to the court under Section 311 of the Code of Criminal Procedure, seeking to recall her as a witness, in view of her letter to the DCP. During her cross-examination in February 2020, she again claimed that her earlier statements had been false.
After her statement was recorded, the judge hearing her case changed. However, the new judge wasn’t convinced.
On 31 August 2021, the court passed an order, seen by ThePrint, directing that Radhika should be produced before the concerned child welfare committee (CWC).
The court asked the CWC to consider sending her to a shelter home and to provide her with counselling till her re-examination was concluded, so that she could “depose without any force, coercion, threat, or under influence”.
The same day, she was produced before the CWC, which appointed support persons for her. In an order passed in September 2021, the CWC sent her to a shelter home in Delhi, and directed that she should be counselled.
When Radhika appeared before the court again on 11 November 2021 for re-examination, she revealed why she had retracted her allegations. She claimed that she had been told by close family members that there was no one to look after her and so she should get her nana released. At some point, she was even taken to jail to meet him, she said.
“He used to tell me that he has reformed and that he was apologetic for his acts. He assured us that since there was no one to take care of us, he would take care of us once he came out of jail,” she told the court, according to court documents seen by ThPrint.
However, this time Radhika supported the prosecution case again.
‘Cocktail of fear and shame’
The pulls, pressures, and internal conflicts that Radhika encountered right from filing her complaint to testifying in court are not unusual for child victims of familial sexual abuse.
In addition to the trauma of the abuse itself, social stigma and concerns about “family honour” complicate the picture, says Nimisha Srivastava, executive director of Counsel to Secure Justice (CSJ), a non-profit that provides legal and psychosocial support to child sexual abuse victims.
“Imagine someone in your own home, someone who is a father figure a lot of times, is actually making your own home unsafe for you. Imagine the continuous trauma of that…The child is living that fear every day. Every day, that child is going through that fear — going to bed in the fear that he or she may be abused,” Srivastava says, speaking to ThePrint.
Compounding this is that when a child does report the abuse to family members, he or she is often not believed, adds Srivastava.
“All those pressures are operating, and the child is living in that cocktail of fear and shame and not knowing what to do,” she says.
Even if the crime is reported to the police, the child may still be in a vulnerable position.
“After reporting, particularly if it is an economically disadvantaged household, the child is often blamed for the loss of the breadwinner of the house,” Srivastava explains.
Vaidehi Subramani, chairperson of the Child Welfare Committee in Lajpat Nagar, says that the factors described above make it difficult for family members to “muster the courage” to initiate legal proceedings.
“Minor abuse is not reported or not given an early intervention in terms of counselling to the child or to the family,” she says.
The exception, Subramani adds, is when “it becomes highly impossible to bear the abuse or (the victims) get pregnant”.
Mixed feelings, family pressure
The user handbook on the POCSO Act, published by the National Commission for Protection of Child Rights (NCPCR), also acknowledges that cases involving sexual offences against children by family members are “difficult and tricky to handle”.
“The child has extremely conflicting feelings about the abuser. This results in delayed reporting of cases,” the handbook says.
Shivangi Goenka, CSJ’s lead social worker for survivor support, explained to ThePrint that the nature of the child’s relationship with the abuser has a significant impact on how abuse affects them.
“For example, if the abuser is the child’s father or someone the child is emotionally close to, it may be difficult for the child to even comprehend that it is abuse. We have had children tell us things like, ‘Didi (sister), tell papa to just say sorry, and then we can finish all of this,’ or ‘Didi, why is papa lying about not doing this to me?’”
Goenka emphasised that the harm caused by a trusted person could have a more severe impact. This, she said, includes the “manipulation and pressure within the house” due to the family’s desire to keep the child quiet and protect the accused.
The POCSO handbook notes that the accused may be the sole breadwinner of the household, and therefore, the person’s imprisonment may put the family under financial stress.
“Families are therefore reluctant to report such matters to the police. Other family members tend to disbelieve the child and refuse to cooperate with the case,” the handbook points out.
It further notes that in such cases, family members may “side with the accused and put pressure on the child to retract his/her story or become uncooperative in the case” — much as what is believed to have happened in Radhika’s case.
“Guilt over the impact of the case on the family and the constant blaming for the child for the accused person being in judicial custody disheartens the child, resulting in statements like, ‘mujhe kisi se kuch nhi bolna chaiye tha (I should not have told anyone anything)’,” Goenka said.
Silence, hostile witnesses — unintended effects of law
On 7 August 2014, an FIR was filed in a Delhi police station accusing Mahipal alias Lala of repeatedly raping his then 13-year-old stepdaughter and threatening to kill her.
However, a day later, when her statement was being recorded by the magistrate, the child repeated thrice that she wanted her stepfather to be released. Court documents show she said she had made a false complaint because he used to beat her.
The matter may have ended there, but in September 2014, the child was found to be pregnant and had to undergo an abortion.
While there were several inconsistencies in her statements over the years, a trial court convicted Mahipal in August 2016 on the basis of his DNA profile matching with the foetus.
On 8 October 2020, the Delhi High Court upheld the conviction and gave its observations on why the girl had recanted her allegations.
“With his arrest, she had found that she had no other place to go but to remain in the care of the authorities. It is understandable that at this stage she desperately wanted her father to be released,” the HC said.
What is unusual about this case is that there was DNA evidence available to secure a conviction, but in most instances of victims turning hostile, the accused is able to walk free.
So, why do victims turn hostile?
In incest cases, victims often balk from testifying in court not just due to social, familial, and financial factors, but also, ironically, because the minimum mandatory sentences are so high.
A report by NGO HAQ Centre for Child Rights and CivicDataLab, which tracked data on the implementation of the POCSO Act from 2012 to April 2020 in Assam, Delhi, and Haryana, points out that the quantum of sentences is a “hurdle in reporting or supporting trial”, where the abuser is from the child’s family.
“In fact, in most such cases that get reported, the victims turn hostile, leading to acquittal,” the report says. Minimum mandatory sentences, it adds, have “created a conflict between the goals of justice and child protection”.
Other provisions of the law can also interfere with reporting cases.
Section 19 of the POCSO Act requires all individuals, including hospitals and other authorities, to report any alleged incident of sexual assault on a minor to the police. Failure to do so can result in a six-month jail term, a fine, or both.
According to Avaantika Chawla, assistant professor at Jindal Global Law School, this legal requirement can sometimes lead to more complications, particularly in cases of incest.
“Say, if a mother does not report her husband sexually abusing the child, she gets six months under Section 21. The punishment under Section 6 (aggravated penetrative sexual assault) is the death penalty. With the death penalty for the father and jail for the mother on the cards, would the child want to report the case? And with this, what is the likelihood of the child turning hostile?” asked Chawla, who has represented several child sexual abuse victims.
An ‘alternative mechanism’
The words of one incest victim in a case she was handling have stayed with Chawla. This victim, Chawla says, told the magistrate: “My father is a very good father. I just want him to stop hurting me.”
This statement highlights the painful complexities of incest cases, which Chawla believes need to be handled via an “alternative mechanism” in addition to the existing judicial framework.
She proposes a system similar to restorative justice, which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.
“I am not saying don’t have criminal liabilities for the offender, but do it in combination with something like restorative justice, which gives an opportunity for victim-offender dialogue, and gives an opportunity for community restorative justice, because it’s not about the child in isolation, but also about the effects on the child’s family,” Chawla said.
“If the child has an opportunity to perhaps sit down with the accused (in incest cases), talk to him, tell him about the harm caused, and the father accepts his mistake, apologises to the child, wouldn’t that lead to a much better result?” she asks.
Chawla suggests that a similar “victim-offender dialogue” could be tried at the sentencing stage as well.
Subramani is a proponent of this approach too. “I am for restorative justice,” she says. “If the child wants to keep silent about the alleged accused, what is the remedy in the law? Meaning, if she does not want to get the remedies through criminal justice, what is left to her?”
Chawla further notes that changes in the compensation structure under POCSO could help encourage more people to report incest cases.
Section 33(8) of the POCSO Act provides special courts with the authority to grant compensation to a child for any mental or physical trauma inflicted upon them or for immediate rehabilitation.
Chawla suggests reviewing this compensation mechanism and broadening its ambit to include the entire family, especially if the accused is the sole breadwinner.
“If the responsibility (of the family) falls on the mother in cases where the father is the accused, she has to become the sole breadwinner. If you have four-five children in one family, what happens to the other children? The compensation that is given by the court is only for the victim. But what happens to the rest of the family?” she asks.
‘I want him to be a little scared’
In December 2021, a POCSO court in Delhi noted that Radhika “needs to be given requisite financial support to address her mental, emotional, physical and educational needs”.
She was, therefore, granted interim compensation of Rs 2.75 lakh. The court ordered that out of this amount, a sum of Rs 1 lakh should be immediately released to Radhika, and the remaining amount should be kept in an interest accruing savings bank account to be opened in her name.
As for her expectations for the outcome of the case, Radhika says that she just wants her nana to be punished for what he did.
“He feels that he can do anything he wants, and that he is not scared of anything,” she tells ThePrint. “I want him to be a little scared.”
*name changed
(Edited by Asavari Singh)
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