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Synopsis

The Bombay High Court has recently observed that pulling a woman’s hair and assaulting her with fist blows, without mens rea (guilty intention), does not constitute the offence of outraging the modesty of a woman under Section 354 of the IPC.

The division bench of the high court, comprising Justice Revati Mohite Dere and Justice P.K. Chavan, was hearing a petition filed by a man seeking directions for the police to add Section 354 (Outraging Modesty of a Woman) and Section 120B (Criminal Conspiracy) to the FIR registered by the police. The Oshiwara Police had filed an FIR based on a complaint filed by the woman.

It was alleged that the two accused assaulted the husband with fist blows in his bedroom, and when the two children entered the room, they too were assaulted by the accused.

Subsequently, when the wife (complainant) entered the bedroom, the accused pulled her hair, took her to another room, and assaulted her with fist blows.

Advocates Aniket Nikam and Sadhna Singh, appearing for the petitioners, contended that the woman's modesty was outraged and, therefore, it was incumbent upon the police to register an offence under Section 354 of the IPC.

 Additional Public Prosecutor K.V. Saste argued that since no case was made out after recording the statements, Sections 354 and 120B of the IPC were not added.

The bench noted that the three ingredients of Section 354 are:

(i)The assault must be on a woman;

(ii) The accused must have used criminal force on a woman; and

(iii) The assault or criminal force must have been used with intent to outrage or knowing that the accused thereby would outrage her modesty.

The high court, while refusing to grant any relief, noted that the act of pushing her was not accompanied by any utterances, gestures, or indecent touch that would indicate sexual overtures.

“…prima facie, appears that it was a sudden quarrel and was not a premeditated act. Similarly, the act of pulling petitioner No.2’s hair and assaulting her with fist blows also appears to be a sudden act and not a premeditated act. The first informant i.e. petitioner No.2, in her statement has not alleged that the act of pushing her was accompanied by any utterances or gestures or indecent touch which would underscore sexual overtures. Neither is there any allegation made by the petitioner No.2 (first informant) that the accused had an evil eye or had touched her inappropriately. Thus, even if the prosecution case is taken as it stands, the existence of mens rea, a prerequisite to attract Section 354 is amiss in the given facts,” the order reads.

The high court also noted that no case was made to add section 120B or transfer the case to CID.

Case title: Nitin Upadhyay & Anr vs State of Maharashtra