Even if you keep your hand on the shoulder of a women , it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly, “said Bombay High Court Justice Naresh Patil. (State of Punjab vs Major Singh).
For over a century Courts have tried thousands for the offence of “outraging the modesty” of awomen without a precise definition of what constitutes a woman’s modesty. And the Supreme Court has finally defined modesty. Its definition is, “The essence of a woman”s modesty is her sex” which is the core of my article.
‘If society trivializes modesty, violence against women would result
In the wake of increasing crime against women, there is an incessant discussion about the laws that deal with offences against women. The marital offences against women include bigamy, adultery, criminal elopement among others. The one that is probably most common offence is cruelty. Over time, courts have expanded the ambit of the definition to include within it different instances. These include gestures, words, etc. that violate the privacy of the woman. These are offences that are understood to outrage the modesty of a woman.
Modesty is the attribute of womanhood. All women, irrespective of their age, possess modesty in varying levels that is capable of being outraged. There has to be a sense of propriety of behaviour when one is interacting with a woman. When anyone causes annoyance or insult to a woman’s sense of decency and modesty or an affront to her dignity, both society and law takes a serious note of the same. Violating the autonomy of a woman’s body, without her consent or against her will, is a punishable crime.
The word modesty’ has not been defined anywhere in the code. The dictionary meanings of the word modesty are a ‘state of being free from undue familiarities outrage’ which means an act of extreme violence and cruelty usually the courts go by the popular meaning and assert that males should observe some sense of propriety of behavior in their relations with women. However, in one the cases the Supreme Court has defined ‘modesty’ it states ‘the essence of women’s modesty is her sex’. Modesty is an attribute associated with female human being which reflects a particular class. The word ‘modesty’ is not to be interpreted with reference to a particular victim of an act, but as an attribute associated with female human beings of a class (Aman kumar vs State of Haryana, AIR 2004 SC1497).
According to my view, Modesty depends upon women also, it varies from society to society, culture to culture and region to region.
Many a times due to cultural differences even a small action may amount to large consequences. For example – handshakes are common behaviour in metro cities but it is not common in rural areas.
It is generally the women who decides the form of touch whether it is good or bad, further it is upto the women to give consent or do not give consent to any person whom she is interacting , and also to decide the degree of touch . if any person who touches the women without her consent is severally liable to be punished, and this conduct of perpetrator is made an offence under sec 354, 509 of the IPC.
Section 354 deals with the case of assault or criminal force to women with intent to outrage her modesty. Whereas Section 509 talks about words, gestures or act intended to insult the modesty of a woman. Section 509 of the Indian Penal Code applies to all women. Law presumes them to be modest unless proved otherwise sending letter to a nurse containing indecent gestures and lewd and filthy suggestions is culpable under Section 509 IPC. The object of this section is to protect the modesty and chastity of a woman. The offence under this section is cognizable, bailable, non-compoundable and triable by a Magistrate of first class. This section does not require any element of criminal force or assault which is an essential element of an offence under section 354 IPC. Section 509 applies to cases which are an insult to the modesty of a woman while in Section 354 the modesty is intended to be outraged. Both these sections seem to overlap each other to some extent but they are different. Assault is an essential ingredient of Section 354 IPC, it also includes gestures which is an element of Section 354 proofs of intention is essential.
PROVISIONS OF THE INDIAN PENAL CODE
Section 354. 354A. 354B. 354C. 354D and 509 of Indian Penal Code.
Assault or criminal force to women 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 there by outrage her modesty, (shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable for fine.)
Sections 354 IPC deals with the offence which is popularly known as molestation. According to Section 354 assaulting a woman or using criminal force against her with the intent to outrage her modesty is punishable with imprisonment for a term which shall not be less than one year but which may extend to five years. Section 354 applies when the acts of the accused go beyond causing insult or annoyance to the modesty of a woman and there is a clear threat of physical harm to her which also shocks the sense of modesty. Section 354 deals with the case of assault or criminal force to women with intent to outrage her modesty.
In Ramkripal Singh vs State of Madhya Pradesh the Court has defined ‘modesty’ and it states ‘The essence of women’s modesty is her sex’. The word ‘modesty’ is not to be interpreted with reference to a particular victim of an act, but as an attribute associated with female human beings of a class. It is a virtue which is attached to a female on account of her sex. The ultimate test for whether the modesty of women has been outraged, assaulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking sense of decency of a woman.Whoever uses criminal force to her with an intent to outrage her modesty commits an offence of Section 354 of IPC. The provision of Section 354 of IPC has been enacted to safeguard public morality and decent behaviour. Explaining this the court in Surender Nath V. State of MP. It was held that pushing the bell bottom pant or chadar down than what is normally required is an indecent behaviour. By differentiating Insult to modesty and outraging the modesty the court In Bankey V. State of
U.P.93 the accused entered the apartment of a lady, caught hold of her and removed her garments, it was held that he had intruded upon her privacy and was convicted for outraging the modesty of a Women. This section does require an element of criminal force or assault which is an essential element of an offence under section 354 IPC. Section 354 will only apply when the modesty of a women is intended to be outraged. Assault is an essential ingredient of Section 354 IPC.
354 A
1. A man committing any of the following acts—
2.Any man who commits the offence specified in clause (I) or clause (ii) or clause (iii) of sub-section (I) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both
3.Any man who commits the offence specified in clause (iv) of sub-section (I) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both
This section was inserted in the IPC the Criminal Laws (Amendment) Act, 2013 and explains what amounts to the offence of sexual harassment and prescribes punishment for the same. Under this new provision the victim of sexual harassment may be a man or a woman but the perpetrator can only be a man. In ‘T Manikadan v The State (Govt of NCT of Delhi)’ the High Court thoroughly examined the difference of section 354 and it was decided in this case that Section 354 deals with assault or criminal force used against a woman with an intention to outrage her modesty while Section 354A deals with the offences that amount to sexual harassment and provides punishment for it. So, it is an act more than mere physical contact under this provision, whereas a mere physical contact with advances would attract Section 354A IPC.
354B. Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
Disrobe means to take off or remove one’s clothes. Under Section 354B of the IPC assault or use of force on a woman with the intention to disrobe her or compel her to be naked are punishable with imprisonment for a term ranging from minimum three to a maximum of seven years. Disrobing is a very serious offence that is derogatory to the dignity of woman hood, thus even abetment of disrobing has been made a punishable offence under this section.
354C. Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
The “private act” includes an act of watching carried out in a place which, in the circumstances, which is expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered and the victim is using a lavatory; or the victim is doing a sexual act that kind which ordinarily done in public. Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination of the act shall be considered an offence under this section. Such a provision was needed to counter the menace of installing hidden cameras in changing rooms in shops, in public urinals, in hotels, rest houses, rented houses and even paying guest accommodations. There are frequent cases involving girls
whose pornographic pictures are taken by their boyfriends and then circulated via MMS or uploaded on the net bringing great disrepute to them and their families.
Stalking.
354D.
Any man who—
Provided that such conduct shall not amount to stalking if the man who pursued it proves that—
This section means harassing someone by following the person around or trying to force any kind of contact by unwanted phone calls, derogatory text messages and emails that disturb the peace of mind of a person or hacking email accounts or conducting any other mode of spying. Whoever monitors the use by a person of the Internet, email or any other form of electronic communication that results in a fear of violence, or interference with the mental peace of such person, commis the offence of stalking. Any sort of misuse of electronic communication to harass someone and hacking into someone’s email account would be a criminal offence as well. Stalking is a criminal offence which is punishable with one to three years in jail. Hence, even after clear indication of disinterest of women, if she is followed by a man either in person or through the electronic medium, then he is guilty of the offence of stalking.
509 Word, gesture or act intended to insult the modesty of a woman. —
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years and also with fine.
This section is referred as the ‘Eve Teasing Section’. The object of the section is to protect the modesty and chastity of a woman. ‘Eve Teasing’ has become pernicious, horrid and disgusting practice. The Indian journal of Criminology and Criminalistics had categorized eve-teasing into five heads: -
The essential elements of the section are:
The criminal law (Amendment act), 2013 was passed in which section 509 of the Penal Code, for the words ‘shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”, the words “shall be punished with simple imprisonment for a term which may extend to three years and shall also be liable to fine’ has been substituted. The term has not been defined in IPC. In the famous case of Major Singh Lachhman Singh vs The State the word “modest” in relation to woman has been considered. It says that modesty is ‘Decorous in manner and conduct; not forward or lewd; shame fast”. Hence, when used for men, it means the quality of being modest, and in relation to woman, ‘womanly propriety of behavior; scrupulous chastity of thought, speech and conduct’.In the case Swapna Barman Vs. Subir Das, ‘Under Section 509 that the word ‘modesty’ does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency, but does not exclude all other acts falling short of downright indecency.’ An insult to the modesty of the woman is an essential ingredient of this offence. If a man exposes his person in an indecent way or use obscene words which he intends that it should be heard or his obscene drawings should be seen, he is held to be an offender under S.509 of IPC. The intention to insult the modesty of woman must be coupled with the fact that the insult is caused. It means that the other party understands that he is insulted. If a person intrudes upon the privacy of a woman, then also he is considered to be liable under this section. The intention to insult the modesty is very important as held in Santha vs State of Kerala that even when a man exposes his private organs to a woman, he can also be charged under section 509 of IPC. The offence may occur in private or public place.
CONCLUSION
The essence of women’s modesty is her sex’.Modesty is an attribute associated with female human being which reflects a particular class. The word ‘modesty’ is not to be interpreted with reference to a particular victim of an act, but as an attribute associated with female human beings of a class. It is a virtue which is attached to a female on account of her sex. The ultimate test for whether the modesty of women has been outraged, assaulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking sense of decency of a woman. Section 354 deals with the case of assault or criminal force to women with intent to outrage her modesty. Whereas Section 509 talks about words, gestures or act intended to insult the modesty of a woman. There is a difference between Section 354 and 509. Section 509 specifically talks about the insult and modesty of the women whereas Section 354 deals with outraging the modesty of the women.
