OUTRAGING THE MODESTY OF THE WOMEN

Submitted by

SHORYA SINGHAL

Division- A

PRN No. - 17010224064

Class.- BBA LLB

Of

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune.

In

January, 2019

Under the guidance of

Ms. Meera Mathew

--------------------------------

(Assistant Professor)
 CERTIFICATE

The project titled “OUTRAGING THE MODESTY OF THE WOMEN” submitted to the Symbiosis Law
School, NOIDA for Law of Crimes Paper I: Indian Penal Code as part of Internal Assessment is based on my
original work carried out under the guidance of Ms. Meera Mathew from 18th Dec to21st Jan. The Research
work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate

Date: 21st Jan; 2018

 INTRODUCTION

In India a woman is the personification of a goddess, a symbol of respect and devotion to the
gods. We have all been brought up in a way that commands the highest honour and respect for
the fairer sex. Crimes against women be it female infanticide, child marriage, pedophilia, sexual
harassment, dowry deaths, physical abuse, etc follow them as a constant scare from cradle to
grave. We might just believe that position of women in our country has improved, especially in
bigger states, but that is nothing other than a myth. We might have progressed but what’s the
point in boasting of our growth-story if it hasn’t taught us to respect the modesty of women.

The word ‘woman’ denotes a female human being of any age. Whereas "modesty" is not defined
in the Indian Penal Code, however it means "womanly propriety of behavior, scrupulous chastity
of thought, speech and conduct (in men or women) reserve or sense of shame proceeding from
instinctive aversion to impure or coarse suggestions Therefore, it is necessary that we look into
details of the various offences under the IPC against women and the laws that guard them.

Section 354 of The Indian Penal Code reads as such, “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.”

Section 509 of The Indian Penal Code reads as such, “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 one year, or with fine, or with both.”

The object of these sections 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.
The punishment under this section may extend to one year with simple imprisonment or fine or
both.
 EVOLUTION

When we speak of Indian Criminal law, it should be a well known fact that only a few years ago,
sexual harassment of women was not enlisted as a juridical category of crime. It was in the year
1997 that the realm of judicial interpretation widened and the object ‘sexual harassment of
working women was configured in the light of the famous case of Vishakha and Another’s v.
Union of India.

This does not imply that there are no related laws in the Indian Penal Code (IPC) that may be
evoked when a woman is sexually harassed. However, these related laws are framed as offences
that either amount to obscenity in public or act that are seen to violate the modesty of women
under sections 294, 354 and 509 of the IPC. While section 294 IPC is a law applicable to both
men and women, the latter two are specifically oriented towards women.

The challenge to the cultural perception of sexual harassment as eve teasing first came from the
women’s movements in India. Post the 1980s campaigns against rape leading to the challenge
and subsequent amendment of the rape law in 1983, it was recognized that many forms of
violence against women are normalized by both societal discourses and state laws.

There have been campaigns and interventions against sexual harassment and most of them have
contributed in some positive way. The Supreme Court judgment on sexual harassment of
working women pronounced had been an important legal event, marking the emergence of
judicial activism in the arena of gender justice.

Till 1991, the laws related to sexual harassment, sections 354 and 509 of the IPC were subsumed
under the category of other IPC crimes. Hence there were no statistics available in absence of a
satisfactory framework. The harassment against women was not viewed as a serious crime then.
In 1992, ‘crimes against women’ was added to ‘Crime in India report’ to cope with the demand
for the statistics to be made available for assessment. This specifically defined ‘crimes against
women’ as a category separate from general crimes.

The report listed the following crimes against women as enunciated in the IPC. Rape (375 IPC);
kidnapping or abduction for different purposes (363-373 IPC); homicide for dowry, dowry deaths
or their attempts (302/304-B IPC); torture, both mental and physical (498A IPC); molestation
(354 IPC); and eve teasing (509 IPC).
 ELEMENTS

The test for outrage of modesty should be that whether a reasonable man will think that the act of
the accused was intended to or was known to be likely to outrage the modesty of the woman.

Where an accused is tried for an offence under s. 354, and an assault is proved, the next question
to be considered is whether he did so with the intent to outrage the woman’s modesty, or with the
knowledge that it would be outraged. The story of a person trying to outrage the modesty of two
women in presence of two gentlemen is so unnatural, that there must be clear and impeachable
evidence before it can be accepted. In a nutshell we can say:
1. There must an assault or criminal force.
2. Such assault or criminal force must be on a woman.
3. Such assault or criminal force must have been made.
 With the intention to outrage the modesty and/or
 With knowledge that her modesty is like to be outraged.

RESEARCH QUESTIONS

1. WHETHER A PERSON CAN BE HELD GUILTY OF OUTRAGING

THE MODESTY OF HIS OWN WIFE?
1Outraging the modesty of women –Inter-Spousal Perspective
By-Surendra Chaher

If a person assaults or uses criminal force against any woman intending to outrage, or knowing it
to be likely that he will thereby outrage, her modesty, he commits an offence under section 354
of IPC. Its essential ingredients are the use of criminal force or assault against a woman for the
purpose of outraging her modesty. A person is said to use force against another if he causes
motion or cessation of motion to that other by his own bodily power or by inducing any animal to
change his motion. Force becomes criminal when it is used with criminal intention and without
that other's consent. Whoever makes any gesture or preparation to give an apprehension to the
other that he is about to use criminal force is said to commit an assault. It follows that if this is

1
Journal of the Indian Law Institute, Outraging the modesty of women –Inter-Spousal Perspective-Surendra Chaher
https://www.jstor.org/stable/43951283?read-
now=1&refreqid=excelsior%3A6e9218b94655425ffe8887947c3c605e&seq=1#page_scan_tab_contents
committed or criminal force is used with the intent or knowledge specified in the section, the
offender is guilty of outraging the modesty of a woman under section.

The law of outraging the modesty of a woman will apply where the husband is guilty of an
outrage against his own wife because it must be so construed as to reflect the principle and value
of equality in marriage. Family courts must be conferred with the jurisdiction to try such cases
instead of invocation of the traditional criminal procedure. The approach suggested here is a form
of 'half-way house' between criminal remedies of trial and punishment on the one hand and non-
intervention by law in the family on the other. The major task before family courts will therefore
be to attempt conciliation between parties in cases of outrage or alternatively suggest separation
instead of leaving it to the wife to prosecute her husband for the determination of guilt. What the
law is really lacking is recognition of the problem of acts of violence like outraging the modesty
in the marriage. It is to these matters that the law, and family courts in particular, must now turn.

It would seem to follow that modesty is considered to be an attribute of every female since her
birth and an outrage against a wife will be punishable irrespective of the fact that she is of a
tender age or developed enough understanding so as to appreciate the nature of the act, or to
realise that it is offensive to her senses. There is no reason for confining the protection afforded
by section 354 only to wives who have attained enough understanding to comprehend that the act
complained of was intended to corrupt their morals or offensive to propriety of womanly
behaviour. The result is that under section 354 age of the wife or her reaction is not a decisive
factor in determining the question whether her modesty was outraged or not. This approach
would suggest thus that women have modesty irrespective of their age and understanding of it.
Modesty is an inherent characteristic of womanhood independent of any individual's personality.

2. Does outraging the modesty of a women cover the females above 18

years or below as well?
2Economic and Political Weekly, Workplace Sexual Harassment-The Way Things
Are
By-Naina Kapur

2
Economic and Political Weekly, Workplace Sexual Harassment-The Way Things Are by Naina Kapur

https://www.jstor.org/stable/23527387?read-
now=1&refreqid=excelsior%3A79444a5f4fbf1cd6a2ec4c42ca6f899f&seq=1#page_scan_tab_contents
Even though the sections relevant in the IPC relating to outraging of modesty of “women” but the
concept is applicable to all the females, be it a three month old baby or eighty two year woman
.In the case of STATE OF PUNJAB v. MAJOR SINGH3. The facts of the case were that one
Major Singh was accused of interfering with the vagina of seven and half month old child and
this was deemed to be outraging her modesty, in this case a question was raised whether this was
outraging the baby’s modesty or not because it was said that the test of outrage of modesty was
the reaction of the women concerned it was held that the reaction of the woman was irrelevant as
the sense of modesty in every woman is not same and thus the concept of modesty for a older
woman is different than a teenager and a baby would not have any concept of modesty. Thus the
concept is applicable to all females and Major Singh was awarded regressive imprisonment.

In construing section 354, it is irrelevant to consider age, physical condition or subjective attitude
of the wife against whom the assault has been committed or criminal force used. The word
woman under IPC denotes a female human being of any age. The earlier interpretation in Soka v.
Emperor4 that protection of the provision is available to women who are old enough to feel the
sense of modesty and whose sense of modesty is sufficiently developed, is no longer acceptable.
In earlier cases where assault was committed or criminal force used against girls of tender of the
accused rested mainly on behaviour of the victim. In GIRDHAR GOPAL v STATE 5 the accused
confined the victim, a girl of six years in asked her to remove her clothes. She refused to do so
and shouted. The act of the applicant in confining the girl, making her lie then sitting on her and
becoming naked was held as amounting criminal force with the intention or knowledge that the
girl's modesty be outraged. The court was apparently of the opinion that since the girl shouted for
help, she had her sense of modesty developed.

Even though the sections relevant in the IPC relating to outraging of modesty of “women” but the
concept is applicable to all the females, be it a three month old baby or eighty two year woman
.In the case of STATE OF PUNJAB v. MAJOR SINGH. The facts of the case were that one
Major Singh was accused of interfering with the vagina of seven and half month old child and
this was deemed to be outraging her modesty, in this case a question was raised whether this was
outraging the baby’s modesty or not because it was said that the test of outrage of modesty was
the reaction of the women concerned it was held that the reaction of the woman was irrelevant as
the sense of modesty in every woman is not same and a female of tender age stands on a
somewhat different footing. Her body is immature and her sexual powers are dormant. In this
case the victim is a baby seven and half months old. She has not yet developed a sense of shame

3
AIR 1967 SCC 63
4
( A.I.R. 1933 Cal 142)
5
(1953 54 Cri. L.J. 1964 (M.B.)
and has not awareness of sex, nevertheless from her very birth she possesses the modesty
attribute of her sex thus the concept of modesty for a older woman is different than a teenager
and a baby would not have any concept of modesty. Thus the concept is applicable to all females
and Major Singh was awarded regressive imprisonment.

CONCLUSION

There is a wide debate in India on the issue that whether laws hold promise of justice for women
who have been victims of violence. At the same time a need is felt to compliment this with
critical evaluation of new modes of governance and surveillance.

Some preventive steps to keep a check on the cases of sexual harassment are quite necessary.
This goal can be achieved when sexual harassment is completely prohibited so that such
incidents may be notified and circulated. Provisions for appropriate working conditions for
women should also be made.

Legal mechanisms cannot be the sole solution in curbing the increasing incidents of sexual
harassment. At some place and time it is very much required that the apathy and fear of the
public concerned with such events should last. If people will be always frightened to speak to
demand their rights, then law cannot come for them as a savior. An initiative on the part of public
is also required. It is of utmost necessity that such values are to be promoted which detest and
vociferously oppose such decadent practices existing in the society. People must be conscious of
their rights so that they can avail full benefit out of them. If a person is ignorant of what his rights
are then at many a times he is not even in a position to understand the nature of injustice which
was just inflicted on him.
Bibliography
BAKER, D. J. (2010). TEXTBOOK OF CRIMINAL LAW. NEW DELHI: MAXWELL.

DHIRAJLAL, R. A. (2004). THE INDIAN PENAL CODE . NAGPUR: WADHA AND COMPANY .

GAUR, K. D. (2004). A TEXTBOOK ON INDIAN PENAL CODE . UNIVERSAL LAW PUBLISHING CO. PVT. LTD.

S.N., M. (2014). INDIAN PENAL CODE. ALLAHABAD : CENTRAL LAW PUBLISHER.

SARKAR, P. (n.d.). LEGAL PROVISIONS OS SECTION 354 OF THE INDIAN PENAL CODE, 1860. Retrieved from
http://www.shareyouressays.com/knowledge/section-354-of-indian-penal-code-1860-explained/118720

SINGH, G. H. (2016). PENAL LAW OF INDIA. LAW PUBLISHER(INIDA) PVT LTD.

JOURNALS
Journal of the Indian Law Institute, Outraging the modesty of women –Inter-Spousal Perspective-Surendra Chaher
https://www.jstor.org/stable/43951283?read-
now=1&refreqid=excelsior%3A6e9218b94655425ffe8887947c3c605e&seq=1#page_scan_tab_contents

Economic and Political Weekly, Workplace Sexual Harassment-The Way Things Are by Naina Kapur

https://www.jstor.org/stable/23527387?read-
now=1&refreqid=excelsior%3A79444a5f4fbf1cd6a2ec4c42ca6f899f&seq=1#page_scan_tab_contents