Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
This offence involves indecent assault or criminal force upon any woman with the intention of outraging her modesty with the knowledge that such act by the person will outrage her modesty. The offence is punishable under Section 354 IPC with imprisonment of either description of a term, which may extend to two years’, or with fine or with both. In K.P.S. Gill case where a high-ranking senior police officer made an indecent assault upon a lady officer in a party, the High Court had quashed FIR on grounds of delay, triviality and improbability of facts. The Supreme Court reversed the High Court’s order, and directed to continuation of investigation and prosecution. The case ultimately ended up in conviction of the offender. The difficulty faced even by a top most lady officer in moving the legal machinery reflects the male biased character of the law enforcement agency. The Supreme Court was inclined to accept dictionary meaning of the term by stating that modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” The Court did not insist on the element of intention. The non- cognisable character of the offence was also problematic factor. Referring to an earlier case, Major Singh”, where a seven-year female child was sexually assaulted, the Court reasoned that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman, and observed, “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.”
More serious sexual assaults also come under Section 354 In Sudesh Jhaku case where a father forced his six-year old daughter to consume alcohol and involve in oral sex not amounting intercourse, the Delhi High Court applied this section.7 Sometimes, the section is used to punish the person who committed the offence of rape where the Court finds that penetration is not sufficient. It is submitted, this is an incorrect approach in view of the clear language in the explanation to Section 375.
For protecting the modesty of woman IPC provides for another provision. Section 509 imposes punishment for insulting the modesty of woman. It provides, “Whoever, intending to insult the modesty of any woman, utters any word, makes any 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 such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or with both.”
