Transcript

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

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speech and conduct. ANYALYSIS OF THE INGREDIENTS MODESTY: In the ordinary language ´modestµ means freedom from conceit or vanity or propriety in dress. It is a gender specific section protecting the modesty of a woman. scrupulous chastity of thought. That such an assault or insult was intended to outrage (or knowing it to be likely to outrage) the modesty of such woman. iii. 1 ³Modesty" is nowhere defined in the Indian Penal Code. or with fine. and it¶s really shameful that people watch as mere spectators. p. Delhi. 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. however it means "womanly propriety of behavior. OUTRAGING THE MODESTY OF WOMEN: IN THE EYES OF LAW Before proceeding further let us go through Section 354 of Indian Penal Code. 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. ESSENTIAL INGREDIENTS An offence under this section has following essentials ingredients: i. ii.M. It relates to the decency of women. shall be punished with imprisonment of either description for a term which may extend to two years.harassment committed by Army officers). 2 . Eastern Book Co. 2006. Women are being forced to run with shattered and tattered pieces of clothes on streets. That the accused must have used criminal force on her. speech and conduct (in men or women) reserve or sense of shame proceeding from 1 B. Gandhi. Indian Penal Code .. or with both".517. That the assault must be on a woman.

Delhi 2008. injurious or insulting act on one hand and it is concerned with guilt. MAJOR SINGH4 1967 SC In this case.and switches off the light. Universal law Publishing Co. He strips himself naked below the waist and kneels over her. 2 IS AGE OF GIRL A RELEVANT FACTOR? NO. The Indian Penal Code . 3 STATE OF PUNJAB V. (Oxford English The word ´outrageµ has affinity with extremely rude. K.). 2 3 Gandhi. an assault can be committed on any woman irrespective of her age. p. 4 AIR 1967 SC 63. culpability. criminality and deviation from decency on the part of person committing assault or using criminal force on a woman. and in the process ruptures the hymen and causes a tear 3/4" long inside her vagina. the accused (Major Singh) has caused injuries to the vagina of a 7½ months old child by fingering.m.Gaur. The modesty of an adult female is writ large on her body. Thus. In this indecent posture he gives vent to his unnatural lust. 3 .instinctive aversion to impure or coarse suggestions" Dictionary.517. young or old as defined by section 10 of IPC. He flees when the mother enters the room and puts on the light´.D. Justice Bachawat with a serious concern and conviction added that:  The essence of a woman's modesty is her sex. He walks into the room where the baby is sleeping at 9-30 p. violent. The scope of this section is wide enough to include a female of any age. 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 offenc e of outraging modesty of women? HELD: The majority view was in the affirmative.1933 Edn. says the Supreme Court.

2006.1827 4 . Her body is immature.C5 CRIMINAL FORCE [S.   The culpable intention of the accused is the crux of the matter.  Section 10 of IPC explains that ³woman´ denotes a female human being of any age. in order to the committing of any offence. She may be an idiot. The Indain Penal Code . Nagpur.P. she may be under the spell of anesthesia. Nevertheless. rigorous imprisonment for a period of six months. 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.C. and her sexual powers are dormant . she may be unable t o appreciate the significance of the act. The expression ³woman´ is used in Section 354 in conformity with this explanation. The reaction of the woman is very relevant. for example. She has not yet developed a sense of shame and has no awareness of sex. when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. or intending by the use of such force to cause. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. I. she may be sleeping. but its absence is not always decisive as. without that persons consent. 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 350.000/and in default. nevertheless. awake or sleeping. ASSAULT OR CRIMINAL FORCE: To establish an offence u/s 354 I. the woman possesses modesty capable of being outraged..  A female of tender age stands on a somewhat different footing. 1. Wadhwa and Co. intelligent or imbecile. p. the offender is punishable under the section. from her very birth she possesses the modesty which is the attribute of her sex . or knowing it to be likely that by the use 5 Rattanlal & Dhirajlal. Young or old.P.350]: Whoever intentionally uses force to any person.

or (b). Thus. or (c). If he causes to any substance such motion. The causing. (3). (b). With anything that other is wearing or carrying. With any part of that other¶s body. By inducing any animal to move or to change its motion or to cease to move. 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. is an aggravated form of assault. is said to use criminal force to that other. Section 354 I. is said to commit an assault. Explanation ± mere words do not amount to an assault. changing or cessation of motion may be: (a). (a).351]: Whoever makes any gestures. If he causes motion. the use of assault or criminal force is an essential ingredient to attract this section. (c). fear or annoyance to the person to whom the force is used. 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. that the motion or change or cessation of motion takes place without any further act on his part. or (2).349] : A person is said to use force to another: (1). or on the part of any other person. or change of motion or cessation of motion as brings that substance into contact.P. By his own bodily power. FORCE [S.of such force he will cause injury. By disposing any substance in such a manner. With anything so situated that such contact affects that other¶s of feelings. change of motion or cessation of motion to that other.C. 5 . sense ASSAULT [S.

PSA Pillai. 8 RUPAN DEOL BAJAJ V.1820 9 AIR 1996 SC 309 6 . Bajaj. 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 cognizab le offence as these were unnatural and improbable and harm caused to complainant was trifling and 6 7 AIR 2004 SC 1677. STATE OF MAHARASTRA6 2004 SC In this case.P. 8 Rattanlal & Dhirajlal. p. Criminal Law . a senior IAS officer so close that her legs were about four inches from her knees. 7 INTENTION IS THE GIST OF THE OFFENCE: So far as the offence u/s 354. the Supreme Court held the accused. IPC is concerned. Gill. who brought the victim to the house of co-accused on false pretext. 1988 Mr. 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. KANWAR PAL SINGH GILL9 1996 SC At a dinner party on July 18. K. 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. 2008. He then asked her µto 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 then DGP of the state of Punjab came and stood in front of Mrs. brought liquor which she was forced to drink and was disrobed and took her nude photographs. p.S.920.RAJU PANDURANG MAHALE V. Nagpur. Lexis Nexis Butterworth s Wadhwa. confined he r in the house.

Even if it was presumed that he had no such intention he was attributed with such knowledge. 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. which considered together.95 IPC .  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. Gill. as the alleged act was committed by him in the presence of a gathering comprising the elite of the society. The complainant being aggrieved by this decision filed SLP in Supreme Court. The pronoun µhe¶ used in the expression ³that he will thereby 7 . 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. But. it has got to be proved like other ingre dients for convicting a person."  It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence.? 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:  The ultimate test for ascertaining whether modesty has be en 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.  The sequence of events which have been detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. the court allowing the appeal of the petitioner held the accused liable u/s 354 . Thus. Now the moot question before the Court was whether the accused liable u/s 354 IPC.attracted the provisions of S. persuaded the Court to hold that he had the requisite culpable intention.

She was rescued before he could do anything to outrage her modesty. the act of the accused must have proceeded beyond the s tage of preparation. STATE OF BIHAR14 2006 SC In the instant case Takeshwar Sahu forcibly took a 12 year old girl with intent to have sexual intercourse.outrage her modesty´ must therefore be taken under section 8. But the Supreme Court setting aside the judgment of Trial court and 10 11 Girdhar Gopal v. v. If the act of the accused does not constitute anything beyond preparation and falls short of attempt. p.B. State [AIR 1953 M. 147] Sate of M. IPC and may be liable to be convicted only for an offence amounting to outraging the modesty.P. 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. assault or criminal force to outrage the modesty or indecent assault. 11 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.2634 13 Ibid. Sheo Dayal 12 Rattanlal & Dhirajlal. IPC as importing a male or female. 14 AIR 2006 SC 598. 12 In order to amount to an attempt to commit an offence. ha may escape the liability under section 376/511. The dividing line between attempt to rape and indecent assault is not only thin but also practically invisible. 8 . 13 TAKESHWAR SAHU V. Held: The Trial Court and the High C ourt convicted the accused under section 376/511 IPC. 1822.

triable by any Judicial Magistrate as summons case. or fine or both.Gaur. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. "The ultimate test for ascertaining whether the modesty of a woman has been outraged. there has not been any attempt of penetration to the slightest degree. outraged her modesty as contemplated under Section 354. In this significant ruling. 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 Supreme Court has observed that :  The modesty of a girl is outraged the moment a man touches her body with criminal intention. What to talk about the penetration."  The word µmodesty¶ is to be interpreted as an attribute associated with female human being as a class . 15 16 K. in the absence of any attempt to penetrate." the Bench held and modified the sentence to five -year imprisonment. PUNISHMENT: If the offence under section 354 IPC is established.551. However.High Court held that the conviction of the appellant u/s 376/511 IPC is wholly unsustainable. the conviction under Section 376/511 IPC is wholly illegal and unsustainable. not compoundable. p.D. It is a virtue which attaches to a female human being on account of her sex. The important ingredient of the offence u/s 375 punishable u/s 376 is penetration which is altogether missing in the instant case. 9 . bailable. "It is a different matter that the accused failed at the stage of preparation of committing the offence itself. the accused is punishable with imprisonment of either description up to 2 years. Hence. he committed the offence of kidnap under Section 366 of the IPC and by touching her. the Supreme Court held that the appellant is clearly guilty u/s 354 IPC. 15 PROCEDURE: The offence under Section 354 IPC is cognizable.

the demand for more stringent laws. p. the courts are expected to try and decide cases of sexual crime against women with utmost sensitivity. The physical scars may heal over the time. 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. more ef fective courts. It is a serious blow to her supreme honor and offends her self -esteem and dignity. Therefore. 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. sternly and severely. Thus.CONCLUSION: Women have been conferred with special grace by nature which she is required to protect. 16 Ratanlal & Dhirajlal. better policing. and greater vigilance becomes most essential in the circumstances. but the scars on the psyche and the trauma caused by the assault may well alter the personality of the woman.1827 10 .