• The 39-year-old accused is now sentenced for the offense of 'outrage of modesty'
  • Man accused of taking the 12-year-old to his house and pressing her breasts
  • The ruling sparked anger, lawyers say it will set a wrong precedent

A judge in India courted controversy by ruling that groping a minor girl did not amount to sexual assault if she remained clothed.

The highest court in the Indian state of Maharashtra reduced the jail time awarded to a 39-year-old man because the judge thought a stringent law designed to check the rising tide of sexual crimes against children could not be applied in his case because he had not stripped his 12-year-old victim.

Justice Pushpa Ganediwala, however, held the man guilty of "outraging the modesty" of the girl under the wider Indian Penal Code. She held that groping a child’s breasts without any skin-to-skin contact does not amount to sexual assault under section 8 of the Protection of Children From Sexual Offences Act which prescribed imprisonment up to five years.

The Jan. 19 order modified a lower court ruling that sentenced the accused under both charges, Live Law reported.

The accused had reportedly taken the girl to his house on the pretext of giving her a guava before pressing her breasts and trying to strip her. The girl's mother filed a police complaint after learning about the incident. The accused appealed his conviction before the high court.

The high court observed that “the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed any breast, would not fall in the definition of 'sexual assault.' It would certainly fall within the definition of the offense under Section 354 of the Indian Penal Code."

The court's order has sparked anger. Roop Sen, the co-founder of the non-profit organization Sanjog, told The News Minute that it raises the question of how non-contact abuse would be read by the courts henceforth and will give impunity to all those voyeuristic offenders.

Mani Chander, a lawyer and founding partner of Clinch Legal, wrote in an op-ed published in The Times of India that the Bombay High Court's observation is highly problematic. "To think that the victim, who is a child, in this case, had to see her experience diminished and trivialized by the very court and law that is meant to ensure her protection, is disturbing on so many levels," she wrote.

Several courts in India had hit headlines with insensitive comments by the judges. A few months ago, a judge deleted his comments from a court order that questioned the behavior of a woman who alleged she was raped, following days of protests from citizens and activists.

Students protest the alleged gang-rape of a  19-year-old woman in India's Uttar Pradesh state
Students protest the alleged gang-rape of a 19-year-old woman in India's Uttar Pradesh state AFP / Indranil MUKHERJEE