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Bombay HC sets 'intent' primary in sexual harassment cases; may renew debate on marital rape

Earlier this week, the Bombay High Court refused to quash a First Information Report (FIR) against a man whose ex-financée accused him of touching her inappropriately (including in a public space) as well as sending sexually explicit and obscene messages on WhatsApp and Facebook.

The woman and the accused had met on Facebook; he had promised to marry her but cancelled the engagement later. The court stated that a love affair was not immunity from a sexual harassment charge. The facts of the present matter state that the woman, a resident of Vakola in Mumbai, complained that the accused took her to a park, touched her obscenely, and forced himself upon her. Thereafter, the accused called off the engagement and the woman filed FIR against him for outraging her modesty (Section 354 of the Indian Penal Code) and cheating (Section 415 of the IPC).

Representational image. Reuters

Representational image. Reuters

The division bench of the Bombay High Court consisting of Justices Satyaranjan Dharmadhikari and Prakash Naik did not concede to the accused’s arguments in favour of striking down the criminal aspects of the case. The accused’s lawyer stated that physical contact between two consenting adults cannot constitute an offence. The court stated — “From the sections (of the IPC) we have perused, we do not see any such requirement being stipulated. Secondly... this is not the only allegation. Seema (name changed) has specifically referred to all conversations on Facebook and mobile messages, which, prima facie, would reveal that there was an attempt to outrage her modesty once consent was obtained in the garb of a permanent relationship... In these circumstances, given the increasing tendency of such crimes (against) women, we do not think we should interfere (in the case)." The court also stated that the allegations cannot be examined in a vacuum and after changes in the criminal law, acts such as sexual harassment, disrobing a woman, voyeurism and stalking are all subsumed under the legal provisions of Section 354.

The bench also refused to quash the cheating charges in the FIR stating that the meetings between the families of the accused and the woman took place, and keeping this mind, they said that "there was an assurance and promise since inception, which led to all expenses being incurred including booking of venue and purchases for the girl such as jewellery. It is in these circumstances that we do not think we should prevent any inquiry or further details being obtained by a process known to law”.

The judgment is, in many ways, progressive. The offence of "outraging the modesty of a woman" under Section 354 is viewed as a crime upon a woman with regard to public order and morality, and decent behaviour.

The essential element of Section 354 is the use of criminal force against the person of a woman for the purpose and with the intention of outraging her modesty. In this regard, the criminal force would be when such force is applied with malicious and criminal intent (mens rea) and without the consent of the woman concerned.

In the past, the judiciary has fixated on the essence and meaning of the phrase "outraging the modesty". At some point, the Supreme Court has indicated that “the essence of a woman’s modesty is her sex". In 2007, in the case, Ramkripal S/O Shyamlal Charmakar vs State of Madhya Pradesh, a bench of the Supreme Court comprising of Justices Arijit Pasayat and SH Kapadia attempted to fill the gaps in the definition. They stated that the provision would apply to cases of crimes against women that stop short of penetration. The bench in the case of State of Punjab vs Major Singh (1967) also stated that "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". In the same case, Justice Mudholkar declared that “Under Section 354 of the IPC while the individual reaction of the victim to the act of the accused would be irrelevant, when an act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind, that act must fall within the mischief of the section and would, constitute an offence under the section.” In 2015, in Deepika vs The State, the Delhi High Court had refused to quash charges of outraging the modesty of a woman stating that “this contention is meritless. It is only a woman who can tell as to with what intention a man had touched her”.

Given the vacuousness and ambiguity of the phrase within Section 354, the provision has been used by the judiciary, so far, as a yardstick to measure the shock value of the substantial facts of cases that deal with crimes against women. By examining the actus reus (criminal act) ad nauseum, what the judiciary has done in the past is to isolate the crime from its context and circumstances. In previous cases, the crime of outraging the modesty of a woman was always assumed to have tainted public order and morality and shocked the judicial conscience. The woman whose "modesty" had been compromised was always seen in relation to society. However, in the present case, the Bombay High Court refuses to immunise the private relationship between the woman and the accused and looks at the crime in context. This ruling indicates that the judiciary wants to take a step forward to ensure that there is a comprehensive way to prevent crimes against women in private spaces as well, and not just in public spaces.

This brings to mind the fact that the criminal law is almost completely silent on sexual violence within intimate relationships and marriage. Can this ruling be the beacon of hope for changes in the judiciary’s stance on marital rape and sexual violence within a marriage? By making a ruling that upholds the rights of women, irrespective of where she is — in the public or the private realm — the Bombay High Court has indicated that it is open to adjudicating controversial cases around violence against women, that lead to nuanced and concrete judgments that revolve around the prevention of violence.


Updated Date: May 17, 2017 15:28 PM

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