The Shorter Oxford English Dictionary (Third Edition) defines the word "modesty" in relation to woman as follows:
"Decorous in manner and conduct; not forward or lewd; Shame--fast : scrupulously chaste."
Modesty is defined as the quality of being modest, and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.
section was intended as much in the interest of the woman concerned as in the interest of public morality and decent behavior and the object of the section could be achieved only if the word 'modesty' was considered to be an attribute of a human female irrespective of whether she had developed enough understanding to realise that an act was offensive to decent female behaviour or not. ( vide State of Punjab v. Major Singh )
Supreme Court of India
Shekara vs State Of Karnataka on 18 February, 2009
In order to constitute the offence under Section 354 IPC mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh (AIR 1967 SC 63). A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under:
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal force on her; and
(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.
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. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight.
Supreme Court of India
Kanwar Pal Singh Gill vs State (Admn., U.T. Chandigarh) ... on 27 July, 2005
Facts of the case : - On 18.7.1988, a senior IAS officer, holding the post of Financial Commissioner and Secretary to the Government of Punjab, invited some of the IAS officers and IPS officer working at Chandigarh, for a dinner at 8.30 P.M. at his residence in Sector 16 of Chandigarh. Apart from the IAS and IPS officers, there were a few advocates, including the Advocate General of the State of Punjab and also some journalists and press correspondents working with some leading newspapers. The guests assembled around 8.30 P.M. Ladies were sitting in a semi-circle slightly away from the male guests. As per the allegation in the complaint preferred by the husband of the prosecutrix, the accused, who was then the Director General of Police of the State of Punjab, came and occupied a chair which was lying vacant at the place where the ladies were sitting. The accused then called out the prosecutrix and asked her to sit near him as he wanted to talk to her about something. When the prosecutrix was about to sit on the chair lying near the accused, the latter suddenly pulled the chair close to him and it is alleged that the prosecutrix felt slightly embarrassed and she managed to pull the chair back and sat on it. The accused again tried to pull the chair close to his chair whereupon the prosecutrix got up from the chair and returned to her original seat. The further allegation is that about ten minutes later, the accused came near the prosecutrix and asked her to come along with him. The prosecutrix strongly objected to his behaviour, but the accused was not prepared to change his tone and tenor and again he asked the prosecutrix to accompany him. The prosecutrix further alleged that she became frightened as the accused blocked her way and she tried to get away from the place whereupon the accused slapped on the posterior of the prosecutrix and the same was done in the presence of other guests. The prosecutrix then made a complaint to the host and told him that the behaviour of the accused was obnoxious and that he was not fit for a decent company. The accused was then gently removed from the place. The prosecutrix made a complaint to the Joint Director, Intelligence Bureau, who was present there. The prosecutrix narrated the incident to her husband who was also present there. On the next day, that is 19th July, 1988, the prosecutrix sought an appointment with the Chief Secretary and recounted the entire incident to him and requested him to take suitable action against the accused. The prosecutrix met the Advisor to the Governor of Punjab and gave a full and detailed account of the incident that had happened at the dinner party.
Supreme Court held : - There is nothing to suggest that the prosecutrix acted in connivance with some others and that she hatched a conspiracy to malign the accused. If the whole incident is viewed in correct perspective, it is clear that the behaviour of the accused on the date of the incident was not consistent with the high standard expected of a top-ranking police officer. The findings of the various courts is to the effect that the accused gently slapped on the posterior of the prosecutrix in the presence of some guests. This act on the part of the accused would certainly constitute the ingredient of Section 354 IPC. It is proved that the accused used criminal force with intent to outrage the modesty of the complainant and that he knew fully well that gently slapping on the posterior of the prosecutrix in the presence of other guests would embarrass her. Knowledge can be attributed to the accused that he was fully aware that touching the body of the prosecutrix at that place and time would amount to outraging her modesty. Had it been without any culpable intention on the part of the accused, nobody would have taken notice of the incident. The prosecutrix made such a hue and cry immediately after the incident and the reaction of the prosecutrix is very much relevant to take note of the whole incident. The accused being a police officer of the highest rank should have been exceedingly careful and failure to do so and by touching the body of the complainant with culpable intention he committed the offence punishable under Section 354 and 509 IPC.
In State of Punjab vs. Major Singh (AIR 1967 Sc 63) a question arose whether a female child of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the `common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to `outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady - "sexual overtones" or not, notwithstanding. ( point reiterated in Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr on 12 October, 1995)
( In State of Punjab v. Major Singh, AIR 1967 SC 63, Court observed that modesty is the quality of being modest which means as regards women, decent in manner and conduct, scrupulously chaste, though the word ‘modesty’ has not been defined in the Code. The ultimate test for determining whether modesty has been outraged is whether the action of the offender as such can be perceived as one which is capable of lowering the sense of decency of a woman. )
Supreme Court of India
J. Jaishankar vs The Government Of India & Anr on 14 August, 1996
In view of the admitted position that the conviction of the petitioner for an offence under Section 509, IPC had attained finality, it undoubtedly involves moral turpitude as it is impermissible for such an employee to continue in service. When a Government servant is dismissed from service on conviction by a criminal Court involving moral turpitude, it automatically leads to removal from service, without further enquiry. Trivial offences like traffic offences, municipal offences and other petty offences under the IPC which do not involve moral turpitude ad different than offences which outrage the modesty of woman , as it involves moral turpitude.
In Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011 and Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, this court held that the offence relating to modesty of woman cannot be treated as trivial and a lenient view by giving six months imprisonment on the ground of juvenility does not require consideration.
In State of U.P. v. Shri Kishan, AIR 2005 SC 1250, this Court has emphasised that just and proper sentence should be imposed. The Court held:
“…… Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society's cry for justice against the criminal’.
Delhi High Court
T. Manikadan vs The State (Govt Of Nct Of Delhi) & ... on 10 January, 2017
when the modesty of a woman is outraged or it is likely to be outraged coupled with an assault or criminal force, Section 354 IPC would be attracted. Though assault can be by mere gesture or preparation intending or knowing that it is likely that such gesture or preparation will cause any person present to apprehend use of criminal force. This is an act more than mere physical contact with advances involving unwelcome and explicit sexual overtures. Ingredients of Section 354 IPC would show that the same mandate an actus reas of assault or criminal force with an intention to outrage or likely to outrage the modesty whereas a mere physical contact with advances as noted above would attract Section 354A IPC. Though in certain fact situations there may be cases where there may be an overlap of both Sections 354 and 354A IPC however, there may be cases which may exclusively fall either in Section 354 or Section 354A IPC. Once an offence falls under Section 354 IPC even if ingredients of Section 354A IPC are satisfied, the accused will be punished for Section 354 IPC the same being more serious in nature as it prescribes the minimum sentence of one year and term for imprisonment which may extend to five years. . In the present case the allegations proved against the petitioner are that he fondled the breast of the prosecutrix with ill intention and thereafter touched her private parts. Thus the offence committed by the appellant fulfils the ingredients of Section 354 IPC and not merely Section 354A IPC which punishes even a physical contact with advances involving unwelcome and explicit sexual overtures. Since criminal force has been used by the appellant and the modesty of the prosecutrix had been outraged by an act beyond physical contact with sexual overture, ingredients of both Sections 354 and 354A IPC being fulfilled, High Court finds no illegality in the conviction of the appellant for the offences punishable under Section 354 and 354A IPC and the sentences awarded.
In Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012 SC 3242, this Court observed that the courts cannot take lenient view in awarding sentence on the ground of sympathy or delay as the same cannot be any ground for reduction of sentence.
Supreme Court of India
Ajahar Ali vs State Of West Bengal on 4 October, 2013
The provisions of Section 354 IPC has been enacted to safeguard public morality and decent behaviour. Therefore, if any person uses criminal force upon any woman with the intention or knowledge that the woman’s modesty will be outraged, he is to be punished.Supreme court didn't find it it to grant benefit of probation in this case.
In State of Kerala V. Hamsu 1988 (2) Crimes 161
held that the accused who beckoned the prosecution by winking his eyes in public and caught hold of her arm was guilty of outraging her modesty and can punished accordingly. Even gestures when they are made with the intention of outraging the modesty of a woman attract the section 354 of the IPC.
In State V, Hetram 2002 CriLJ 4528 a girl of about 15 years of age was coming from her mother’s place. The accused suddenly appeared from a lane he dragged her towards the other side of the lane, and took her to a secluded spot, it was held sufficient to book the accused under Sec 354 IPC. Woman‘s modesty is her sex whoever uses criminal force with an intent to outrage it commits an offence under section 354 IPC. The intention of the accused is the crux, no conviction can be based on surmises, guesses or conjectures in the absence of any evidence.
Supreme Court of India
Ram Das vs State Of West Bengal on 24 February, 1954
The most serious allegation against the appellant on this part of the case is that he forcibly held the two ladies to his breast. The first information report given by P. W. 5 stated that he "in his naked condition clasped both of them on to his breast". The evidence in the case, however, does not bear this out. P. W. 1 stated that the two ladies became frightened at the attitude of the appellant and went down to the floor of the compartment for safety, and then the appellant caught hold of them and embraced them. P. W. 5 deposed that the appellant caught hold of both the ladies, and then they went down to the floor of the compartment. In his examination-in-chief, he said nothing about the appellant embracing the ladies. In cross-examination, however, he deposed that the appellant embraced both the girls from behind. In cross-examination, however, she added that she had been embraced. P. W. 9 deposed that the appellant was able to catch hold of P. W. 6 but that she herself was not caught. She does not speak to his embracing even P. W. 6. On this evidence, we find it difficult to hold that the incident of embracing has been proved beyond doubt.
P. Ws. 1, 5 and 6 also stated that the appellant first removed his coat and belt and put them on the upper berth and then removed his trousers and become practically naked. But it is admitted by P. Ws. 1 and 6 that he had his underwear, and it is possible that the removal of the trousers was with a view to lie on the berth. No inference could therefore be drawn from it that the intention of the appellant was to outrage the modesty of the ladies. We cannot help thinking that the first information report presents an exaggerated account of what really happened. It is also stated that the appellant was staring at the ladies "with lustful eyes". But this impression appears to be more psychological than factual. The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.
Held " We have accordingly come to the conclusion that while the appellant was undoubtedly guilty of having assaulted P. W. 6, it cannot be held that he did so with intent to outrage her modesty, or with the knowledge that it would be outraged. We, therefore, acquit the appellant of the charge under Section 354, and substitute therefore a conviction under Section 352 for assault."
In Jagmal Singh V. State the court held that since the intention of the offender could not be
proved it was held that the appellant was wrongly convicted, so on appeal the conviction was
set aside unless the culpable intention is proved, mere touching the belly of a woman in a
public bus cannot be called a deliberate act of outraging the modesty of a woman within the
meaning of this section. Touching the belly of a girl is not culpable if it is not intentional
Merely putting the hand on the belly of girl cannot be construed to indicate that the accused
was using criminal force for the purpose of committing this offence or causing injury or
annoyance. It may be an attempt to draw the attention of the girl.
GUIDELINES IN EVE TEASING EVENTS :-
Supreme Court of India
Dy.Inspector Gen.Of Police & Anr vs S.Samuthiram on 30 November, 2012
The Parliament is currently considering the Protection of Woman against Sexual Harassment at Workplace Bill, 2010, which is intended to protect female workers in most workplaces. Provisions of that Bill are not sufficient to curb eve-teasing. Before undertaking suitable legislation to curb eve-teasing, it is necessary to take at least some urgent measures so that it can be curtailed to some extent. In public interest, we are therefore inclined to give the following directions:
1) All the State Governments and Union Territories are directed to depute plain clothed female police officers in the precincts of bus-stands and stops, railway stations, metro stations, cinema theatres, shopping malls, parks, beaches, public service vehicles, places of worship etc. so as to monitor and supervise incidents of eve-teasing.
2) There will be a further direction to the State Government and Union Territories to install CCTV in strategic positions which itself would be a deterrent and if detected, the offender could be caught.
3) Persons in-charge of the educational institutions, places of worship, cinema theatres, railway stations, bus-stands have to take steps as they deem fit to prevent eve-teasing, within their precincts and, on a complaint being made, they must pass on the information to the nearest police station or the Women’s Help Centre.
4) Where any incident of eve-teasing is committed in a public service vehicle either by the passengers or the persons in charge of the vehicle, the crew of such vehicle shall, on a complaint made by the aggrieved person, take such vehicle to the nearest police station and give information to the police. Failure to do so should lead to cancellation of the permit to ply.
5) State Governments and Union Territories are directed to establish Women’ Helpline in various cities and towns, so as to curb eve-teasing within three months.
6) Suitable boards cautioning such act of eve-teasing be exhibited in all public places including precincts of educational institutions, bus stands, railway stations, cinema theatres, parks, beaches, public service vehicles, places of worship etc.
7) Responsibility is also on the passers-by and on noticing such incident, they should also report the same to the nearest police station or to Women Helpline to save the victims from such crimes.
8) The State Governments and Union Territories of India would take adequate and effective measures by issuing suitable instructions to the concerned authorities including the District Collectors and the District Superintendent of Police so as to take effective and proper measures to curb such incidents of eve-teasing.
354 and attempt to Rape :
As observed by Justice Patterson in Rex v. James Liyed (1876) 7 C and P 817, in order to find the accused guilty of an assault with intent to commit a rape, Court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.
In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. In Rex v. James Lloyd (1836) 7C and P 817 : 173 ER 141 while summing up the charge to the jury, Justice Patterson observed :
"In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events and notwithstanding any resistance on her part".
In Express v. Shankar, (1881) ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Malyill J., which as quoted below, are very pertinent :
"We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events and in spite of all resistance."
Delhi High Court
Jai Chand vs The State on 2 February, 1996
facts of the case : - Kumari Kiran Sharma was on duty from 9 p.m. to 7-30 a.m. in the Operation Theatre. Jai Chand too was on duty on that very day. His duty hours were from 8 p.m. to 7-30 a.m. At about 9-45 p.m. after Ms. Sharma had finished her routine work she came to the Post Operation room of the Theatre. Jai Chand also arrived there and after catching hold of her, forcibly laid her down on the bed, broke the string of her Pyjama, gave a tooth bite on her left cheek and turned, her underwear. He even removed her sanitary pad. Ms. Sharma, however, did not give up. After giving him a push, she ran to the "Reception" at the first floor of the building where she narrated the incident to Sister A. Mathew (PW. 2). Later Dr. A. K. Gupta, Head of the Department, (PW, 3), also reached there who called the police leading to the recording of her statement. Ex.PW. 1/A and seizure of her clothes namely, Pyjama (Ex.P-1), underwear (Ex.P-2) besides the broken string. (Ex.P-3).
Decision : - " appellant having forcibly laid Ms. Sharma down on the bed; having broken the string of her Pyjama and having turned her underwear, he made no attempt to undress himself. What is more, after Ms. Sharma had pushed him away he made no effort to grab her again, or to prevent her from going to the first floor. If that be so, it cannot be said that the appellant not only desired to gratify his passions upon her person, but that he intended to do so at all events and notwithstanding any resistance on her part. This being the position it was not a case of attempt to commit rape under S. 376 read with S. 511 but one under S. 354 of the IPC. His conviction is thus altered to one under S. 354 of the IPC. As regards sentence, the appellant has already lost his job."
State of Madhya Pradesh Vs. Babulal, A.I.R. 1960 M.P. 155
The dividing line between attempt to commit rape and indecent assault is not only thin but also is practically invisible. For an offence of attempt to commit rape, prosecution is required to establish that the act of the accused went beyond the stage of preparation. In a given case, where the prosecutrix was made naked and her cries attracted her uncle who came to the spot and then the accused fled away, it was held that it was not a case of attempt to commit rape but was one under Section 354 IPC . ( reiterated in Tukaram Govind Yadav vs State Of Maharashtra on 30 November, 2010)
As to line between indecent assault and attempt to rape :-
Supreme Court of India
Koppula Venkat Rao vs State Of Andhra Pradesh on 10 March, 2004
Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than more preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. In order to find an accused guilty of an attempt with intent to commit a rape. Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
Orissa High Court
Damodar Behera And Anr. And Sagar ... vs State Of Orissa on 26 July, 1995
In the facts of the case, the evidence on record clearly show that the sari of the victim had been removed by alt the accused persons. Nothing beyond that appears to have been done. It is accepted that the accused ran away on seeing some persons. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Sections 376/511, IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354, IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. 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.
ON SECTION 509
Sau. Anuradha R. Kshirsagar And ... vs State Of Maharashtra And Others on 12 December, 1989
The facts giving rise to this prosecution may be briefly stated as follows : Mrs. Anuradha R. Kshirsagar and Mrs. Malti Madhao Pawade (the complainants in Criminal case No. 11 of 1983 and No. 12 of 1983 before the Judicial Magistrate, First Class, Akola) along with other ladies were the teachers working under the Zilla Parishad, Akola. On 30th October, 1982, a meeting of all the teachers, including the lady teachers, was convened at about 11 a.m. by the Assistant Education Officer, Mrs. Kamal Gadekar. While this meeting we going on and while Mrs. Gadekar was addressing the meeting, the accused Madhukar Mahadeorao More was standing outside the door of the hall. It is alleged that a request was made by him, to the chair, for permission to address the meeting, but this request was not accepted. It is alleged that the accused wanted the lady teachers sitting inside the hall to come outside the hall so that the meeting could not continue, but when he found the lady teachers not leaving their seats, he uttered threatening words
court held :- "The evidence does show that because of these utterances the complainants and the ladies were frightened. This in itself is sufficient to constitute the offence, particularly when the whole case is considered on the background. I would, therefore, hold that though the accused is not guilty of that offence punishable under Section 509 of the Indian Penal Code, he is guilty of the offence punishable under Section 506 of the Indian Penal Code and he deserve to be convicted for an offence punishable under Section 506, Part I of the Indian Penal Code."
Bombay High Court
Emperor vs Tarak Das Gupta on 4 November, 1925
The main facts are that he sent by post to the complainant, an English nurse, a letter containing indecent overtures and suggesting that the complainant should take certain action in order to show whether she accepted the terms mentioned in this letter. The complainant went to the police, and in consequence of what they did, the accused was found to be the person who had sent the letter. He did not dispute this at the trial. The letter is described by the Magistrate as containing the most lewd and filthy suggestions and showing a wholly vicious and depraved mentality of the writer. In the circumstances, we entirely agree with the Magistrate that an inference 'arises that the accused intended to insult the modesty of the complainant, who is an unmarried woman, who had no previous acquaintance with the accused, and was not of a loose character. Conviction under 509 upheld.
Supreme Court of India
S. Khushboo vs Kanniammal & Anr on 28 April, 2010
The appellant is a well known actress who has approached Supreme Court to seek quashing of criminal proceedings pending against her. As many as 23 Criminal Complaints were filed against her, mostly in the State of Tamil Nadu, for the offences contemplated under Sections 499, 500 and 505 of the Indian Penal Code, 1860 [hereinafter `IPC'] and Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 [hereinafter `Act 1986']. The trigger for the same were some remarks made by the appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical.
Similarly, Section 509 IPC criminalises a `word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants' grievance is with the publication of what the appellant had stated in a written form.
Supreme court held " Similarly, Section 509 IPC criminalises a `word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants' grievance is with the publication of what the appellant had stated in a written form.
We must also respond to the claim that the appellant's remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appellant's statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence."
On point of freedom of marriage and right to cohabit with a partner of choice :
in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery'), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioner's brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the commencement of trial proceedings. This Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that `no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court'.
However mere reference to sex is not itself outraging the modesty , issue of 292 IPC also arose in this case :
In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section. In the present case, the appellant takes full responsibility for her statement which was published in `India Today', a leading news magazine. It would be apt to refer back to the decision of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein it was held that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. Even though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference.
In Samaresh Bose Vs. Amal Mitra, AIR 1986 SC 967, where the Court held that in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author, the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader.