'Fall Of Woman's Headgear Due To Use Of Force Without Any Intention Does Not Amount To Outraging Modesty': J&K High Court

The Jammu & Kashmir and Ladakh High Court has held that the falling of a woman's headgear on account of the use of force does not amount to outraging her modesty. It observed that mere use of criminal force or assault on a woman, without any intention to outrage her modesty, does not constitute an offence under Section 354 of the Indian Penal Code. The Court clarified that intent to outrage or knowledge of likely outrage to a woman's modesty is an essential element of the offence.Justice Sanjay Dhar was hearing a petition challenging the FIR registered for offences under Sections 354 and 448 of the IPC. The complainant, who is the sister-in-law of the petitioners, alleged that the petitioners entered her house, assaulted her and her husband, and that during the altercation, her headgear fell off, amounting to outraging her modesty. The petitioners argued that the FIR was lodged to settle an ongoing property dispute and that no ingredients of the alleged offences were made out.The Court noted that modesty is the quality of a woman of being modest, whereas in relation to a woman, it means decorous in manner and conduct. Thus, any act which shocks the sense of decency of the woman would come within the purview of the offence of outraging the modesty of a woman. The Court observed that to constitute an offence under Section 354, the act must be accompanied by an intention to outrage a woman's modesty. It observed:“Mere assault or use of criminal force to a woman simplicitor, without there being any intention on the part of the accused to outrage the modesty of the victim, would not fall within the definition of the offence punishable under Section 354 of the IPC. An assault or use of criminal force to a woman simplicitor unaccompanied by a state of mind to outrage modesty of such woman cannot be termed as an offence under Section 354 of IPC.”The Court noted that though the complainant was dragged by the petitioners, which resulted in the fall of her headgear, there is nothing to suggest that the petitioners intended to outrage the modesty of the complainant.“… it cannot be stated by any stretch of reasoning that the allegations made in the impugned FIR and the material collected by the Investigating Agency makes out a case of offence under Section 354 of IPC against the petitioners,” the Court observed.The Court also held that the ingredients of Section 448 IPC (criminal trespass) were not made out, since the property, on which the aggressor party has entered, should be in possession of the victim. Unless it is shown that the property, upon which trespass is committed, is in possession of the victim and not in possession of the offender, it cannot be stated that the offence of criminal trespass has been committed.The Court further remarked that the complainant has tried to settle a civil dispute between her and the petitioners by giving it a criminal colour, which has prompted her to lodge the impugned FIR. Holding that the FIR was lodged with mala fide intent and that continuation of criminal proceedings would amount to abuse of process, the Court quashed the FIR and all consequential proceedings.Advocates:Mr. Naveed Gul, for the petitionerMr. Ilyas Nazir Laway, Government Advocate, with Ms. Maha Majeed, Assisting Counsel, for the respondentCase Title: Mushtaq Ahmad Shah & Ors. v. UT of J&K & Ors. [CRM(M) No. 182 of 2022]Click Here To Read/Download Order

'Fall Of Woman's Headgear Due To Use Of Force Without Any Intention Does Not Amount To Outraging Modesty': J&K High Court

Saksham Vaishya

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