INTRODUCTION

Modesty is not only an ornament, but also a guard to virtue…

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?

Women still find it hard to gain respect and security at home, leave alone outside.

Work places have issues like sexual harassment imbedded in the work culture, when

it comes to female employees. Public transport still gives the entire female

population using it, a time of hell. She is failed to be accorded with the respect she is

entitled to claim, as a human being.

WHY STRIP WOMEN OF MODESTY?

Women are so often, literally and metaphorically, stripped of their dignity that they

most often just refuse to stand up on their own for themselves.

Take the recent Mangalore pub assault episode, which took place on January

24, 2009, when the activists of Sri Rama Sena barged into a pub and violently beat

up the girls present there in the name of preserving Indian culture. These self-styled

activists claim they were trying to uphold the moral culture of our society. How is

subjecting women to humiliation and violence moral? And just who is policing the

morals of this group? And how can I forget to mention the shameful role played by

the media. Not one of the media persons tried to help the victims - they ran after

them with their cameras as they were being thrashed and chased and recorded

everything faithfully.

Take other incidents like that of terror against Christian women (especially

nuns) in Orissa and Karnataka; or the previous incidents of violence against

women in northeast (many of which were acts of rape and harassment committed

by Army officers), and well why go far take the case of a false sting operation

against Uma Khurana in Delhi where after the sting was telecast on a national

news channel a mob stripped the innocent school teacher. Women are being forced

to run with shattered and tattered pieces of clothes on streets, and it’s really

shameful that people watch as mere spectators.

OUTRAGING THE MODESTY OF WOMEN: IN THE EYES OF LAW

Before proceeding further let us go through Section 354 of Indian Penal Code. It is

a gender specific section protecting the modesty of a woman. It states that:

"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".

ESSENTIAL INGREDIENTS

An offence under this section has following essentials ingredients:

i. That the assault must be on a woman.

ii. That the accused must have used criminal force on her.

iii. That such an assault or insult was intended to outrage (or knowing it to be

likely to outrage) the modesty of such woman.

ANYALYSIS OF THE INGREDIENTS

MODESTY: In the ordinary language “modest” means freedom from conceit or

vanity or propriety in dress, speech and conduct. It relates to the decency of

women.1 “Modesty" is nowhere 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" (Oxford English

Dictionary,1933 Edn.).

The word “outrage” has affinity with extremely rude, violent, injurious or insulting

act on one hand and it is concerned with guilt, culpability, criminality and deviation

1 B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Co., Delhi, 2006, p.517.

from decency on the part of person committing assault or using criminal force on a

woman.2

IS AGE OF GIRL A RELEVANT FACTOR?

NO, says the Supreme Court. The scope of this section is wide enough to include a

female of any age, young or old as defined by section 10 of IPC. Thus, an assault

can be committed on any woman irrespective of her age.3

STATE OF PUNJAB 1967 V. SC MAJOR SINGH4

In this case, the accused (Major Singh) has caused injuries to the vagina of a 7½

months old child by fingering. He walks into the room where the baby is sleeping at

9-30 p.m.and switches off the light. He strips himself naked below the waist and

kneels over her. In this indecent posture he gives vent to his unnatural lust, and in

the process ruptures the hymen and causes a tear 3/4" long inside her vagina. He

flees when the mother enters the room and puts on the light”.

Now the question before Hon’ble Justices of Supreme Court was whether a person

who caused injury to private parts of female child of seven and half months is guilty

under Section 354 of offence of outraging modesty of women?

HELD: The majority view was in the affirmative. Justice Bachawat with a serious

concern and conviction added 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. Whoever uses criminal

force to her with intent to outrage her modesty commits an offence

punishable under Section 354 .

The culpable intention of the accused is the crux of the matter.

2 Gandhi, p.517.3 K.D.Gaur, ‘The Indian Penal Code’, Universal law Publishing Co.’ Delhi 2008.4 AIR 1967 SC 63.

The reaction of the woman is very relevant, but its absence is not always

decisive as, for example, when the accused with a corrupt mind stealthily

touches the flesh of a sleeping woman. She may be an idiot, she may be

under the spell of anesthesia, she may be sleeping, she may be unable to

appreciate the significance of the act; nevertheless, the offender is punishable

under the section.

A female of tender age stands on a somewhat different footing. Her body

is immature, and her sexual powers are dormant. She 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.

Section 10 of IPC explains that “woman” denotes a female human being of

any age. The expression “woman” is used in Section 354 in conformity with

this explanation.

In view of the judgment of the majority the accused was held guilty u/s 354 IPC and

he is awarded rigorous imprisonment for a term of two years and a fine of Rs. 1,000/-

and in default, rigorous imprisonment for a period of six months.

ASSAULT OR CRIMINAL FORCE: To establish an offence u/s 354 I.P.C. the

prosecution must also prove that the accused subjected the victim to assault as

defined in section 351 or to criminal force as defined in Section 350, I.P.C5

CRIMINAL FORCE [S.350]: Whoever intentionally uses force to any person,

without that persons consent, in order to the committing of any offence, or intending

by the use of such force to cause, or knowing it to be likely that by the use of such

force he will cause injury, fear or annoyance to the person to whom the force is used,

is said to use criminal force to that other.

FORCE [S.349] : A person is said to use force to another:

(1). If he causes motion, change of motion or cessation of motion to that other, or

(2). If he causes to any substance such motion, or change of motion or cessation

of motion as brings that substance into contact,

(a). With any part of that other’s body, or

5 Rattanlal & Dhirajlal, “The Indain Penal Code’, Wadhwa and Co., Nagpur, 2006, p.1827

(b). With anything that other is wearing or carrying, or

(c). With anything so situated that such contact affects that other’s sense

of feelings.

(3). The causing, changing or cessation of motion may be:

(a). By his own bodily power.

(b). By disposing any substance in such a manner, that the motion

or change or cessation of motion takes place without any further act on

his part, or on the part of any other person.

(c). By inducing any animal to move or to change its motion or to

cease to move.

ASSAULT [S.351]: Whoever makes any gestures, or any preparation intending

or knowing it to be likely that such gestures or preparation will cause any person

present to apprehend that he who makes that gestures or preparation is about to use

criminal force to that person, is said to commit an assault.

Explanation – mere words do not amount to an assault. But the words which a

person uses may give to his gestures or preparation such a meaning as may make

those gestures or preparation amount to assault.

Thus, the use of assault or criminal force is an essential ingredient to attract this

section. Section 354 I.P.C. is an aggravated form of assault.

RAJU PANDURANG MAHALE 2004 V. SC STATE OF MAHARASTRA6

In this case, the Supreme Court held the accused, who brought the victim to the

house of co-accused on false pretext, confined her in the house, brought liquor

which she was forced to drink and was disrobed and took her nude photographs,

6 AIR 2004 SC 1677.

guilty u/s 354 of IPC as there acts were affront on the normal sense of feminine

decency and capable of shocking the sense of decency of a woman.7

INTENTION IS THE GIST OF THE OFFENCE:

So far as the offence u/s 354, IPC is concerned, intention to outrage the modesty of

the women or knowledge that the act of the accused would result in outraging her

modesty is the gravamen of the offence.8

RUPAN DEOL BAJAJ 1996 V. SC KANWAR PAL SINGH GILL9

At a dinner party on July 18, 1988 Mr. K.P.S. Gill, the then DGP of the state of

Punjab came and stood in front of Mrs. Bajaj, a senior IAS officer so close that her

legs were about four inches from her knees. He then asked her ‘to get up

immediately’ and come along with him and on her objection slapped her on the

posterior in the full presence of all the guests.

The FIR filed by the victim was however quashed by the high court on the ground

that matter allegations made in FIR did not disclose the cognizable offence as these

were unnatural and improbable and harm caused to complainant was trifling and

attracted the provisions of S.95 IPC. The complainant being aggrieved by this

decision filed SLP in Supreme Court.

Now the moot question before the Court was whether the accused liable u/s 354

IPC.?

HELD: The court on the basis of the dictionary meaning of 'modesty' and the

interpretation given to that word by this Court in Major Singh's case held that:

7 PSA Pillai, ‘Criminal Law’, Lexis Nexis Butterworths Wadhwa, Nagpur, 2008, p.920.8 Rattanlal & Dhirajlal, p.18209 AIR 1996 SC 309

The ultimate test for ascertaining whether modesty has been outraged 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.

Slapping a woman on the posterior in full public glare "would amount to

outraging 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."

It is undoubtedly correct that if intention or knowledge is one of the

ingredients of any offence, it has got to be proved like other ingredients for

convicting a person. But, it is also equally true that those ingredients

being states of mind may not be proved by direct evidence and may

have to be inferred from the attending circumstances of a given case.

The sequence of events which have been detailed earlier indicates that the

slapping was the finale to the earlier overtures of Mr. Gill, which considered

together, persuaded the Court to hold that he had the requisite culpable

intention. Even if it was presumed that he had no such intention he was

attributed with such knowledge, as the alleged act was committed by him in

the presence of a gathering comprising the elite of the society.

Thus, the court allowing the appeal of the petitioner held the accused liable u/s 354.

OUTRAGING MODESTY BY WOMAN ON WOMAN:

The offence u/s 354 IPC can be committed by any man or a woman with necessary

intent or knowledge. The pronoun ‘he’ used in the expression “that he will thereby

outrage her modesty” must therefore be taken under section 8, IPC as importing a

male or female.10

OUTRAGING MODESTY ON CONSENT OF WOMAN:

It is however important to note that the accused can not be convicted to outrage the

modesty of a woman if assault to her emanates from or with her consent. 11

10 Girdhar Gopal v. State [AIR 1953 M.B. 147]11 Sate of M.P. v. Sheo Dayal

INTER-REALTION: Attempt to Rape [376/511] & Outraging the Modesty [354]

In between a complete rape and attempt to commit rape there is a grey area covered

by section 354 IPC, assault or criminal force to outrage the modesty or indecent

assault. The dividing line between attempt to rape and indecent assault is not only

thin but also practically invisible.12 In order to amount to an attempt to commit an

offence, the act of the accused must have proceeded beyond the stage of

preparation. If the act of the accused does not constitute anything beyond

preparation and falls short of attempt, ha may escape the liability under section

376/511, IPC and may be liable to be convicted only for an offence amounting to

outraging the modesty.13

TAKESHWAR SAHU 2006 V. SC STATE OF BIHAR14

In the instant case Takeshwar Sahu forcibly took a 12 year old girl with intent to have

sexual intercourse. She was rescued before he could do anything to outrage her

modesty.

Held: The Trial Court and the High Court convicted the accused under section

376/511 IPC. But the Supreme Court setting aside the judgment of Trial court and

High Court held that the conviction of the appellant u/s 376/511 IPC is wholly

unsustainable. The important ingredient of the offence u/s 375 punishable u/s 376 is

penetration which is altogether missing in the instant case. What to talk about the

penetration, there has not been any attempt of penetration to the slightest degree.

The appellant had neither undressed himself nor even asked the prosecutrix to

undress so there was no question of penetration. in the absence of any attempt to

penetrate, the conviction under Section 376/511 IPC is wholly illegal and

unsustainable.

However, the Supreme Court held that the appellant is clearly guilty u/s 354 IPC. In

this significant ruling, the Supreme Court has observed that:12 Rattanlal & Dhirajlal, p.263413 Ibid, 1822.14 AIR 2006 SC 598.

The modesty of a girl is outraged the moment a man touches her body

with criminal intention. "The ultimate test for ascertaining whether the

modesty of a woman has been outraged, assaulted or insulted is when the

action of the offender should be such that it may be perceived as one which is

capable of shocking the sense of decency of a woman."

The word ‘modesty’ is to be interpreted as an attribute associated with

female human being as a class. It is a virtue which attaches to a female

human being on account of her sex.

Hence, he committed the offence of kidnap under Section 366 of the IPC and by

touching her, outraged her modesty as contemplated under Section 354. "It is a

different matter that the accused failed at the stage of preparation of committing the

offence itself," the Bench held and modified the sentence to five-year imprisonment.

PUNISHMENT:

If the offence under section 354 IPC is established, the accused is punishable with

imprisonment of either description up to 2 years, or fine or both.15

PROCEDURE:

The offence under Section 354 IPC is cognizable, bailable, not compoundable,

triable by any Judicial Magistrate as summons case. 16

CONCLUSION:

Women have been conferred with special grace by nature which she is required to

protect. Outraging the modesty of women apart from being a dehumanizing act is

also an unlawful intrusion of the right to privacy and sanctity of a female. It is a

serious blow to her supreme honor and offends her self-esteem and dignity. The

physical scars may heal over the time, but the scars on the psyche and the trauma

caused by the assault may well alter the personality of the woman. It puts a question

mark on what has long been established: that the right to life under Article 21 is not a

right to mere vegetative existence, but to a life with dignity and a decent standard of

living. Therefore, the courts are expected to try and decide cases of sexual crime

against women with utmost sensitivity, sternly and severely. Thus, the demand for

15 K.D.Gaur, p.551.16 Ratanlal & Dhirajlal, p.1827

more stringent laws, better policing, more effective courts, and greater vigilance

becomes most essential in the circumstances.