Outraging the Modesty of Woman U/S 354 IPC - Offences against Women

Crime against women are rising in India especially in State of Uttar Pradesh, Madhya Pradesh and Delhi and there is a need felt in every corner of India to enhance punishment to deter these crimes. India is signatories to various International treaties including related to protection of human rights of woman and children.

Hon’ble Supreme Court of India and various High Courts has taken cognizance of situation on many occasions and recommended to Union of India and state Governments to amend the law to protect the faith of common man especially vulnerable groups like woman and children. 

A Critical review of decisions of courts has been done for highlighting the legal situation on the issue of meaning and scope of applicability of section 354 IPC. Data base collected and compiled from the National Crime Record Bureau website to understand the rising trend of crime.

This paper discusses various reasons for less punishment for molestation and need for enhanced punishment and making it non-bailable to make sense in preventing rising crimes against woman.

Many cases of molestation attracted the attention of media and policy makers. On August 12, 1990, SPS Rathore, then IG and President, Haryana Lawn Tennis Association (HLTA) molested Ruchika for which CBI Court sentenced six months imprisonment to him on 21.12.2009. 

The family of Ruchika Girhotra, a minor girl who allegedly committed suicide after molestation by former Haryana director general of police (DGP) SPS Rathore, has given up its fight for justice in the court of law after 22 years. 

The Special CBI Court Panchkula on 01.6.2012 accepted the closure report submitted by the Central Bureau of Investigation (CBI) in two cases – attempt to murder and forgery of documents, filed against former Haryana DGP SPS Rathore. Ruchika’s father Subhash and brother Ashu raised no objection to the closure report.

 Admitting that he was not in a position to pursue the matter further, Subhash said, “I do not see any hope now. We feel cheated. My family is vulnerable. The circumstances have pushed us back by 20 years.” 

“When Rathore was convicted in 2009, Ruchika’s father met Union Home Minister, P C Chidambaram who assured him of justice. 

Her father forced family into exile after Ruchika’s death, fearing further harassment at the hands of the former DGP. During this period, the family shifted between several cities and returned to Panchkula many years later only to lead an inconspicuous life.

Meaning and Scope of Modesty: 

The meaning of the word “modesty” means, “Womanly propriety of behaviour, 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”. – Oxford English Dictionary [6] 

Court observed: “This obviously does not refer to a particular woman but to the accepted notions of womanly behaviour and conduct. It is in this sense that the modesty appears to have been used in section 354 of the Indian Penal Code”. 

The learned Judge then referred to S.509 of the Penal Code in which also the word “modesty” appears and then proceeded to say: 

Public Morality and Decent Behavior: 

“The object of this provision seems to have been to protect women against indecent behaviour of others which is offensive to morality. The offences created by section 354 and section 509 of the IPC are as much in the interest of the women concerned as in the interest of public morality and decent behaviour.” 

Court further observed that “These offences are not only offences against the individual but against public morals and society as well, and that object can be achieved only if the word “modesty” is considered to be an attribute of a human female irrespective of fact whether the female concerned has developed, enough understanding as to appreciate the nature of the act or to realize that it is offensive to decent female behaviour or sense of propriety concerning the relations of a female with others”. 

Global Scenario: 

The fact that, the Sexual Offences Act, 1956[8] has used much wider-language in s. 14 which, deals with indecent assault on women than that used in S. 354, I.P.C. 

That in one sense S. 354 can also be said to be wider than S.14 of the British Act in that it is not confined to sexual offences which is quite correct. The two provisions run thus: 

Section 14 of the Sexual Offences Act, 1956 

“Indecent assault on a woman: 

  • It is an offence, subject to the exception mentioned in sub-section (3) of this section for a person to make an indecent assault on a woman.
  • A girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.
  • Where a marriage is invalid under section two of the Marriage Act, 1949, or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of sixteen), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief”.
  • A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective”.

Section 354 of the Indian Panel Code: 

“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”. 

What is made an offence under S.14 is the act of the culprit irrespective of its reaction on the woman. The question is whether under S.354 the position is different. It speaks of outraging the modesty of a woman and at first blush seems to require that the outrage must be felt by the victim herself.

But such an interpretation would leave out of the purview of the section assaults, not only on girls of tender age but on even grown up women when such a woman is sleeping and did not wake up or is under anesthesia or stupor or is an idiot.

It may also perhaps, under certain circumstances, exclude a case where the woman is of depraved moral character. Could it be said that the legislature intended that the doing of any act to or in the presence of any woman whom according to the common notions of mankind is suggestive of sex, would be outside this section unless the woman herself felt that it outraged her modesty? 

Test for modesty: 

Court observed that “Again, if the sole test to be applied is the women’s reaction to particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman? These considerations impel court to reject the test of a woman’s individual reaction to the act of the accused.

However, court observed that it would not be easy to lay down a comprehensive test” 

As per Bachawat, L. J.:  

Section 10 of the IPC explains that “woman” denotes a female human being of any age. The expression “woman” is used in S.354 in conformity with this explanation, see S.7.[7] 

What then is a Woman’s Modesty?  

Court observed that “that the essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty, capable of being outraged. 

A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. Even if the victim is a baby, has not yet developed a sense of shame and has no awareness of sex. Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex.

Observation:  

Incidence of molestation cases in India registered u/s 354, IPC increased by more than 100 percent since 1991, except a marginal decrease raging between 96 to 99% in 2002, 2005 (99%), 2003 (97%) and 2009 (96%) respectively.

There was phenomenal increase of more than 200% (224%) in the year 1995 over the 1994. Quinquennial Average (Q.A.) between 2005-2009 was 37730 (3.3), which is quite high and need to draw attention of the policy makers, legislatures, law commission of India, judiciary and those involved in criminal justice administration like police, Forensic Medicine experts and social activists.

Violation of Right to Privacy and Personal Integrity / Human Dignity:  

Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes.

 Constitutional Provisions:  

Article 15(3) of the Constitution of India speaks of allowing the State to make special provisions for women and children. 

International Obligations:  

The Convention on the Elimination of All Forms of Discrimination Against Women, 1979, which was ratified by India in August 1993 and the U.N. Convention on the Rights of The Child, 1989, which was ratified by India on 11.12.93, especially Articles 17 (3) and 19 of the latter speaks of the need to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well being and physical and mental health, and for developing appropriate guidelines for the protection of the child from information and material injurious to his or her well being. 

States Parties should take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian (s) of any other persons who has the care of the child. 

Recently Allahabad High Court pointed out that because of the mild penalty of sentence up to two years prescribed for an offence under section 354 IPC and the fact that the offence is bailable, such crimes of sexual violence against women are daily on the increase, although they are usually unreported. 

No woman going to college or for meeting friends or who is simply walking on the streets or travelling by a public transport vehicle for going to some place or as in the present case, even when she is present in her house, is completely safe. Victims of such sexual crimes suffer great shame and humiliation. 

Reasons for Non-Reporting of Cases: 

Because of the attending social stigma and personal and family dishonor the aggrieved female is usually reluctant to lodge any complaint or FIR when she is made a victim of this sexual crime. In the rare case when she takes recourse to the law enforcing agency, an absolute mockery of justice results when the molester is let out on bail at the police station itself, as section 354 IPC is a bailable offence and he becomes free to again stalk and terrorize the victim or to commit another criminal assault on her for outraging her modesty. 

Violative of Article 14 of Indian Constitution:  

Such a lenient punishment appears to have been prescribed for the crime under section 354 IPC because of a patriarchal mind set which does not accord equal status with a man to a woman, and is indifferent to the psychological trauma that a woman must undergo when criminal force is applied to her for outraging her modesty.

As a matter of fact if a woman or girl child is viciously molested, it can be a highly traumatic experience which can leave a permanent psychological scar on the woman or girl child as she suffers humiliation, degradation and violation in the same manner similar to that she would suffer if she were an actual victim of a rape. 

Violation of Fundamental Right to Sexual Integrity and Autonomy:  

It is thus a crime similar to the crime of rape, and whilst it has been argued that such crimes affect the sexual integrity and autonomy of women and children and are violative of the right to life guaranteed under Art. 21 of the Constitution of India, but the argument to this extent have not been accepted in Sakshi v Union of India. 

Trial in camera: 

Supreme Court has shown considerable concern for the woman or child victim of sexual violence, and has held in paragraph 34 that the provisions of sub-section (2) of S.327 Cr.P.C. prescribing in camera trials in addition to the offences mentioned in the sub-section i.e. offences under section 376, 376 A, 376 B, 376 C, and 376 D IPC also apply in inquiry or trials of offences under Ss. 354 and 377, I.P.C.  

Need for appropriate legislation:  

Sakshi case (2004)[14] has also emphasized in paragraph 35 that as the cases of child abuse and rape are increasing at an alarming speed appropriate legislation by Parliament in this regard is, urgently required.

Psychologically where a woman or child is subjected to criminal force or assault for outraging her modesty, the experience was considered equally traumatizing as an actual act of rape of the woman.

 Psychological Harm:  

Apex Court of India in State of Punjab v Gurmit, [10] has also shown great concern for the honour of women and the psychological harm that can be caused by such crimes. 

SC in another cases observed that “Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected.

Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. 

A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. In the instant case after careful consideration of the evidence, the trial court and the High Court have found the accused guilty. But the offence is Section 354 IPC”.

[Para 13] SC altered the conviction of the accused from Section 376 IPC to Section 354 IPC. [Para 14][16] 

Role of Courts:  

They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. 

The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

Need For Harsher Punishment: 

SC observed that “………. In fact, we feel that the sentence was too light considering the gravity of the offence.” 

The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor is called for harsher punishment; it is surprising that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge. 

Hon’ble High Court, therefore, recommend that the State of U.P. and the Union of India, consider amending the provisions of section 354 IPC and the First Schedule to the Cr.P.C. by prescribing a higher sentence for the offence and for making it non-bailable and triable by a Court of Session. [13]

Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.

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