Medical exam of children by doctors with parental consent protected under POCSO Act: Kerala High Court

The Kerala High Court recently observed that medical examinations of children that are conducted by doctors with the consent of the child's parents are exempt from criminal liability under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Justice G Girish made the observation while quashing a criminal case registered against an 80-year-old pediatrician on allegations that he had sexually harassed a minor girl while medically examining her in her family's presence.

The Court noted that the medical exam was conducted in the presence of the child's mother and elder sister. This was among the factors that led the judge to express reservations over whether there was any sexual intent on the part of the doctor while examining the child.

“It is too hard to believe that the petitioner would have resorted to sexual advances upon the victim in the close presence of the victim’s mother and elder sister …  the statement given by the victim to the Police, nor her statements to the learned Magistrate … contained any indication that the alleged act committed by the petitioner was with sexual intent. It is true that the statement given by the victim to the Magistrate contained a casual indication that she felt the move on the part of the petitioner as a bad touch. But, it would be highly unsafe and improper to act upon the above isolated casual remark of the victim, to come to a conclusion that the petitioner had acted with sexual intention," the Court observed.

The Court further pointed out that medical examinations conducted with parental consent and in the presence of family members were protected from criminal liability.

In particular, the Court referred to Section 41 of the POCSO Act, which lays down that Sections 3-13 of the POCSO Act (dealing with various offences) do not apply to medical examinations that are conducted with parental consent.

"As per Section 41 of the POCSO Act, the provisions of Sections 3 to 13 shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian," it noted.

The Court proceeded to allow the doctor's petition to quash the charges against him. It emphasised that mere physical contact during medical examinations, without any indication of sexual intent would not attract the provisions of the POCSO Act or charges of sexual harassment under Section 354A(1)(i) of the Indian Penal Code (IPC).

"The victim was medically examined by the petitioner in the vicinity of her mother and elder sister. That being so, it is not possible to say that the prosecution records would disclose that the petitioner had resorted to the alleged acts with sexual intent. In that view of the matter, the prayer of the petitioner to quash the proceedings against him, is perfectly justifiable," the Court's ruling said.

The petitioner, a senior medical practitioner, was accused of sexually assaulting a Class X student (minor girl) under the pretext of medical examination during two of her visits to his medical clinic.

The allegations were that the doctor touched the minor girl's breasts and naval area during medical consultations to examine complaints of chest and abdominal pain.

Notably, the minor's mother and elder sister were present in the room during both instances.

The doctor was subsequently booked for sexual harassment under IPC and aggravated sexual assault under the POCSO Act.

The doctor denied the allegations and asserted that he had followed standard clinical procedures.

He contended that the examination was performed in the presence of the minor's family members, and no complaint was raised during or immediately after the consultations.

After reviewing the material on record, the Court ruled in his favor.

"Chances that adolescent girl (misunderstaning) the act of the petitioner, cannot be ignored. At any rate, the act of the petitioner cannot be termed to be an outrageous sexual act since it is clear from the statement of the victim itself that she had complaints of chest pain and abdominal pain, and that it is for the treatment of the above ailments that she had approached the petitioner," the Court added.

Advocates Nirmal S, Veena Hari, Keerthy Johnson, Mintu Jose, Gini George, and Aishwarya Shivakumar appeared for the petitioner.

Senior public prosecutor Pushpalatha MK appeared for the State.

[Read Order]