By Anuradha Gandhi and Isha Sharma
“What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object..”
-as rightly emphasized by the Hon’ble Apex Court while dealing with what is outraging of modesty, in the case of Raju Pandurang Mahale vs. State of Maharashtra & Anr.
Introduction:
The Hon’ble Bombay High Court recently delivered a significant ruling on August 05, 2024 providing insights into the legal interpretation of Section 354 of the Indian Penal Code (IPC), 1860 which pertains to the offence of outraging the modesty of a woman.
Section 354 of the IPC reads thus:
“Assault or criminal force to woman with intent to outrage her modesty- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
The case in question involved an incident where a woman was allegedly assaulted by having her hair pulled and being struck with first blows. The key legal issue centered on whether these actions, in the absence of specific intent, could be considered an offence under Section 354 of the IPC.
A division bench of the Hon’ble Bombay High Court, comprising of Hon’ble Justice Smt. Revati Mohite Dere and Hon’ble Mr. Justice Prithviraj K. Chavan, examined a petition filed by the woman’s husband, who sought to have Section 354 (Outraging Modesty of a Woman) and Section 120B (Criminal Conspiracy) of the IPC added to the FIR registered by the Oshiwara Police Station, Mumbai. The petitioner further sought for transfer of investigation from the Oshiwara Police Station to the Crime Branch or State CID.[1]
Facts of the Case:
An FIR was lodged by the woman against the accused alleging offences punishable under Sections 143, 147, 149, 452, 323, 504, 427 of the IPC. It was the petitioner’s case that the police ought to have also added Sections 354 and 120 B of the IPC to the said FIR, in addition to the aforesaid sections, as she claimed that her modesty was outraged.
The FIR had been lodged following a statement made by the woman on June 09, 2024, wherein she narrated how the incident took place and how certain male persons entered her house and assaulted her husband. She has stated that the male persons assaulted her husband along with her two young children with fist blows and thereafter accused two individuals who pulled her hair and took her to another room. It was also alleged that the accused damaged her house and took away certain articles.
Post filing of the petition, the supplementary statement of the woman was recorded on July 30, 2024 wherein she alleged that the two individuals pulled her hair and took her to another room, and thereafter, assaulted her. Hence, in view of the same, she sought Section 354 of the IPC to be added. She further stated that, apart from the same, she did not wish to say anything more with respect to outraging of her modesty.
The petitioners (both husband and wife) argued that the actions of the accused amounted to an affront to the woman’s modesty and thus warranted the addition of Section 354 to the FIR.
However, the Additional Public Prosecutor countered the argument, stating that the facts of the case did not meet the legal threshold required for such a charge. Specifically, he noted that no evidence suggested the accused acted with the intention to outrage the woman’s modesty, nor were there any accompanying gestures, utterances, or indecent touches indicative of sexual intent.
Court Analysis:
The Hon’ble Court took a nuanced approach in it analysis. It emphasized that for an act to qualify as an offence under Section 354, the following critical elements must be established:
- The assault must be on a woman;
- The accused must have used criminal force on a woman; and
- The assault or criminal force must have been used with intent to outrage or knowing that the accused thereby would outrage her modesty.
The court underscored that in the present case, the third element i.e., the intent to outrage modesty was lacking. The court observed that the physical assault on the woman, though reprehensible, was not accompanied by any behavior that would suggest sexual overtones.
From the facts of the case, the court found that prima facie, it appears that it was a sudden quarrel and was not a premediated act. Similarly, the act of pulling woman’s hair and assaulting her with fist blows also appears to be a sudden act and not a premediated act. The first informant (i.e., woman) in her statement had not alleged that the act of pushing her was accompanied by any utterances or gestures or indecent touch which would underscore sexual overtures. Neither was there any allegation made by the woman that the accused had an evil eye or had touched her inappropriately. Thus, even if the prosecution case is taken as it stands, the existence of mens rea, a prerequisite to attract Section 354 is amiss in the give facts.
Consequently, the court refused to grant the relief sought by the petitioners, stating that the act of pulling the woman’s hair and hitting her did not, in isolation, suffice to prove an intention to outrage her modesty.
Furthermore, the court found no basis to add the charge of criminal conspiracy under Section 120 B. Moreover, with regard to the transfer of investigation is concerned, the court stated that the police are investigating the case and have recorded statements of several witnesses. The same is reflected from the file produced before them and hence, considering this, no case is made out to transfer the investigation of this case, to the Crime Branch or to the State CID.
Thus, the petition was accordingly dismissed with the aforesaid observations vide order dated August 05, 2024.
Conclusion:
This ruling highlights the importance of establishing intent and context in cases involving Section 354, clarifying that all acts of violence against women does not automatically translate to an offence of outraging modesty under the IPC, unless there is a clear indication of sexual intent or an affront to modesty.[2] The decision underscores the judiciary’s careful consideration of the elements that must be present to sustain such grave charges, ensuring that the application of the law is both fair and just.
[2] https://ssrana.in/articles/unveiling-the-veil-of-dignity-posh/