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

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

2
Gandhi, p.517.
3
K.D.Gaur, ‘The Indian Penal Code’, Universal law Publishing Co.’ Delhi 2008.
4
AIR 1967 SC 63.
  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.

 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

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

(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,
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

6
AIR 2004 SC 1677.
7
PSA Pillai, ‘Criminal Law’, Lexis Nexis Butterworths Wadhwa, Nagpur, 2008, p.920.
8
Rattanlal & Dhirajlal, p.1820
9
AIR 1996 SC 309
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:

 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

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
10
Girdhar Gopal v. State [AIR 1953 M.B. 147]
11
Sate of M.P. v. Sheo Dayal
12
Rattanlal & Dhirajlal, p.2634
13
Ibid, 1822.
14
AIR 2006 SC 598.
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:

 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,
16
triable by any Judicial Magistrate as summons case.

15
K.D.Gaur, p.551.
16
Ratanlal & Dhirajlal, p.1827
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
more stringent laws, better policing, more effective courts, and greater vigilance
becomes most essential in the circumstances.