MOMENT OF SHAME: The Martys outside a Mumbai courtroom

Nine-year-old Swati (name changed) was too young to understand it as she stood stark naked before the gora uncle with the camera. Even today, sometimes, she misses the soft toys, the floral summer dresses and goodies the white man and his nurse wife offered her. She was unaware of the actual outrage she underwent. But before she can walk the heritage streets of the Gateway of India again, her abusers would probably be long gone. For India’s long, tardy arm of law can’t keep paedophiles behind bars too long.

Swati is now 13 and lives in the safe confines of St Cathedral’s Home in Mumbai. She was one of the two girls being filmed by Swiss nationals Wilheim Marty, 61, and Loshiar Marty, 58, when a Mumbai police team swooped on them. On December 16, 2000, the Martys were caught red-handed filming the two girls inside a room-cum-studio in Hotel Resort at Madh Island, one of Mumbai’s popular beach retreats in the western suburbs.

As soon as he was caught, Wilheim Marty removed a data chip and tried to chew it. But, the alert police team prevented him from destroying the chip which led the police to hundreds of photographs of nude children stored on his laptop. A printed itinerary was also found which contained names of nearly 40 Mumbai children the couple was planning to film during their month-long holiday.

Police investigations revealed that Wilheim Marty worked as a respectable general manager of a multinational company based in Switzerland, while his wife was a trained nurse. The duo had been regular visitors to Mumbai for nearly 10 years. Usually known for their tardy response to offences of this kind, the Mumbai police went into an overdrive. They established contact with the Swiss police through the Interpol and raided Marty’s properties. The raids led to further evidence of pornographic material and the arrest of Wilheim Marty’s nephew who helped the couple sell the photographs on the Internet.

The modus operandi of the Marty couple was to pose as tourists and convince poor families that since Indian laws did not allow them to adopt, they would be happy to spend time with street children and buy them gifts. “When a street child informed us about this, we tipped off the police and traced the Martys to the hotel,” says Sangeeta Punekar, a member of the Forum Against Child Sexual Exploitation (FACSE) and one of the three child rights activists who first exposed the case in 2000.

The Mumbai police arrested the Martys under 11 sections of the Indian Penal Code and Section (4) (6) of the Indecent Representation of Women (prohibition) Act of 1986. The Mumbai sessions court judge Justice M.R. Bhatkar sentenced the couple to seven years’ rigorous imprisonment in March 2003.

But last month, Mumbai High Court shortened the sentence of the Marty couple to the period they had already served in jail — 39 months — and allowed them to walk free if they paid a compensation of Rs 1 lakh to each of their six child victims who came forward as witnesses.

Shocked by the verdict, children’s rights workers strongly voiced their outrage, forcing the Maharashtra government to move in appeal to the Supreme Court. Chief Justice V.. Khare of the Supreme Court then stayed the release of the paedophile couple till further orders, but granted them conditional bail. The apex court also referred the case back to the sessions court to decide upon the bail formalities with directions that the Martys’ passports should not be returned to them.

But, the courtroom drama has only brought the focus back on how child abuse continues to be a neglected subject in the Indian legal system. “Child abuse as an offence can have deep psychological impact on children. But, there is little understanding of the gravity of the offence. Moreover, unlike other countries, there is no law in India which can punish paedophilia,” says Punekar.

Some studies on the issue indicate that child abuse goes largely unreported in India. “It is nearly 10 times that of the reported cases,” says Altaf Shaikh, a member of Saathi and an associate of Punekar. According to Punekar, the studies done by institutes like NIMHANS, Bangalore, showed that nearly 70 to 80 per cent of the girls under study admitted that they were abused during their childhood. “Abuse can be in various forms. It can be verbal. It can be voyeuristic. It can be physical like fondling or kissing,” she says.

The legal debate over the Mumbai High Court’s decision to allow the Martys to walk free continues to rage. But Justice (Retd) Hosbet Suresh argues that from the legal point of view, the Mumbai High Court judge, Justice A.S. Aguiar, was well within his discretion to halve the seven-year sentence. “I can understand that many people feel that the Martys should have been made to serve a full sentence. But they had served three years or more in jail. They were old. They would not have returned to India. And the court agreed to release them only after the compensation amount was raised to 1 lakh per child.”

But activists feel that the Supreme Court’s decision to grant bail, although imposing conditions forcing the Martys to stay in India, would not be enough. “Police cases in Goa show that paedophiles who were let off on bail managed to jump bail and escape. It is a huge risk,” says Punekar.

Meanwhile, non-governmental organisations like Sakshi have already prepared a draft to bring paedophilia offences under the Indian Penal Code. The draft has been submitted to the Law Commission. Provisions like creating a children’s fund made available with the courts for assisting child victims during trials have also been drafted into acts like the Juvenile Justice Act of 2000. But, implementation of these positive changes is still a long way away.

Till then, perhaps, children like Swati will continue to be wooed on the streets of Mumbai. And around the country.