1

Jamia Millia Islamia University, New Delhi

“Insights on outraging modesty of a women and

Subject - Criminal Law

Submitted to – Dr Samia Khan

Submitted by - Zeeshan Ahmad Abbasi

Course – B.A.LL. B (Hons) Regular

Semester – 3ND Semester

Roll Number – 67

Student ID – 202003808
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ACKNOWLEDGEMENT

I would like to convey my heartiest thanks to Dr. Samia Khan, my Criminal Law Professor who
always gave me her valuable time and suggestion during the completion of this project. She has
been a source of inspiration for me and he helped me in understanding and remembering
important and necessary details of the project.

I would like to thanks my parents and friends who helped me a lot in this project and motivated
me a lot. I would also like to thank God for giving me such wonderful guides who keep on
guiding me at every moment whenever I need them.

Zeeshan Ahmad Abbasi

Semester 3

BA. LL. B

Roll no. 67
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TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………4

WHAT IS MODESTY?............………………………………..............................……….……4

CAUSES OF OFFENCES AGAINST WOMEN……………...........................................……6

RECENT DEVELOPMENTS...................................…….……………………………….…...6

MISUSE OF PROVISIONS.……………………………………….……........….....................7

BUYING AND SELLING OF MINORS FOR PROSTITUTION…………………...…....….8

SECTION 373 IPC……………………………………….…….…...........................................9

SECTION 372 IPC....................................................................................................................10

CONCLUSION.........................................................................................................................12
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INTRODUCTION

The dawn of the 21st Century has witnessed an upsurge in crimes related to women. The NCRB
data of last decade bolsters the fact that women are subjected to cruelty in different forms and
presents a very sorry state of affairs. In contemporary society, even children are not spared. They
are forcefully bought and sold for the purpose of prostitution. However, it is even seen that the
guardians who protect the rights under all circumstances are often found to be exploiters and
perpetrators of crime on them. Mostly, these crimes result in lifelong trauma or death. Like other
jewels, modesty is seen as the most precious jewel for a woman. 1 The modesty of a women is on
stakes, will be a gross understatement to make. It is imperative for society as well as the state to
uphold the idea of modesty in its true sense. It is rightly observed that, “If society trivializes
modesty, violence against women would result”.2 The consequences of these are very sorrowful.
Some of them including, women finding it difficult to walk alone late in the nights, fear of
stranger men while they travel, rapes, sexual assaults, etc.

WHAT IS MODESTY?

The term “Modesty” is defined by different people in different ways. According to Oxford
English Dictionary, the meaning of the word "modesty" means: “Womanly propriety of
behavior, scrupulous chastity of thought, speech and conduct (in men or women) reserve or sense
of shame proceeding from instinctive aversion to impure or coarse suggestions" 3. In simple
terms, it can be defined as the way of Conduct or performance which intends to prohibit the
stimulation of Sexual attraction in others. Modesty is often misappropriately equated with
clothing and lifestyle. The standards of Modesty differ from one society to the other. Talking in
specific about the Modesty in the case of women they vary widely in different cultures. The
Indian Penal Code nowhere explicitly defines the term modesty. Section 354 of IPC states, if a
man uses force against a woman or threatens to use force against her, it is considered as a special
crime. The action taken against this crime is so serious that it allows the police to arrest the
accused without a warrant. In general sense, outraging modesty of a woman is known as molestation.
It is such a pressing issue that courts are of the view that offence relating to modesty of woman cannot
1
S v. State of Maharashtra, AIR 2021 SC 154
2
Outraging the modesty of women, available at:  https://www.lawyersclubindia.com/articles/outraging-
the-modesty-of-women-597.asp (last visited on Nov 4, 2021).
3
Oxford English Dictionary (1933 Edn.). 1933rd ed. Oxford Press
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be treated as trivial or a petty offence. “…Sexual harassment like eve-teasing of women amounts to violation of
rights guaranteed under Article 14, Article 15 as well. We notice in the absence of effective legislation to contain
eve-teasing, normally, complaints are registered under Section 294 or Section 509 IPC. …… Eve teasing today has
become pernicious, horrid and disgusting practice. ….. More and more girl students, women etc. go to educational
institutions, work places etc. and their protection is of extreme importance to a civilized and cultured society.” 4

The other section related to modesty is section 509 of IPC. “Section 509 IPC provides that whoever,
intending to insult the modesty of any woman, utters any word, makes any sound or 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 of such woman, shall be punished.” The offences
created by section 354 and section 509 of the IPC are as much in the interest of the women concerned
as in the interest of public morality and decent behaviour. The essential and the differentiated element
of the section is use of assault or criminal force, thus, where the bottom pants of the woman were being
pull down, the act was termed as outraging the modesty. The ultimate test for establishment of the fact
that whether the woman’s modesty has been outraged or not is that the very action of the offender
should be such that it may be perceived as one which is capable of shocking the entire sense of decency
of a particular woman or women at large. The judgment of State of Punjab v. Major Singh, 5has been
proven to be a landmark one where the question arose that whether the modesty of a seven and a half
months’ child being outraged or not, it was held that the word ‘modesty’ has the meaning of the
accepted notions of womanly modesty and not only the reactions and other notions pertaining to the
woman against whom the offence has been committed. This is known to be the major case as far as the
question of modesty is concerned.

6
In Major Lachhman Singh v. The State, the term ‘modesty’ pertaining to the woman has been
considered and was being discussed. As far as the offence under Section 354 of Indian Penal Code was
being considered wherein it was being explicitly held that all the allegations were not sufficient to fulfil
the necessary and essential ingredient of the offence.20 However, the clear definition and description of
the word modesty was given in the judgment of Ramkripal Singh v. State of Madhya Pradesh.7 The
Section 509 on the other hand makes the intention to insult the modesty of the woman as an essential
and the most important ingredient of the offence as it has been mentioned that whoever intends to
insult the modesty of any woman, utter any word, makes any sound, or gesture or exhibits any object

4
Vishaka and others v. State of Rajasthan and others, AIR 1997 SC 3011
5
AIR 1967 SC 63
6
AIR 2007 SC 370 1963 CriLJ 390
7
AIR 2007 SC 370
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intending that such word or sound will be heard or intrudes the privacy of the woman shall be
punishable according to the prescribed term. 8 In the landmark case of Swapna Barman v. Subir Das,9it
was being held that under this particular provision of Section 509 the term ‘modesty’ does not only lead
to the contemplation of sexual relationship of an indecent character but also includes indecency.

Causes of offences against Women

According to a research based on 50 surveys, at least one out of every three women worldwide is
physically and emotionally mistreated, forced to have sex, and beaten severely. Some women are
reared in an environment that encourages them to acquire a sense of inferiority. This leads to a
situation in which even a woman generalises and convinces herself that there is nothing wrong
with perpetrating the crime committed against her. There are several reasons for the committing
of crimes against women. They are:

1. The inferior status of women due to social conditioning

Recent developments

There are innumerable modifications which are being brought about in this particular offence of
Indian Penal Code in order to make the provision stricter with the intention to curb the increasing
rate of criminal records of such offence and to avail the provision of safety, security and
protection to the woman at large. According to the Justice Verma Committee Report, which was
being submitted on January 23, 2013, the non-penetrative forms of sexual contact needed to be
considered as sexual assault and the punishment should be increased to five years under the
Section 354 of Indian Penal Code. Also, it was being recommended that a quicker and speedy
trial was the need of an hour in the offences which are committed against women. The
Committee was headed by the then Chief Justice of India J.S. Verma and it was identified by the
committee the root cause of sexual offences is the failure of the governance. This particular
report plays a considerably crucial role in bringing about the major amendment of 2013.
Considering the given recommendations, the major amendment was brought about in the March
2013 through the Criminal Law (Amendment) Act, 2013, 32 because of which sporadic
developments have taken place. The punishments were increased. In addition to the same, new
sections are being added up in Indian Penal Code, 1860 which are: Section 354A (sexual
harassment), Section 354B (intention to disrobe a woman), Section 354C (voyeurism) and
8
Ibid.
9
AIR 2004 GLR 168
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Section 354D (stalking) with separate punishments respectively. There have been major
pronouncements since then. In the recent judgment, Delhi High Court has ruled that showing
middle finger to a woman amounts to outraging her modesty thereby proving the laws to be more
stringent as they were earlier. However, the misuse and abuse of the provisions has become
rampant. There have been innumerable cases which are being filed and have been proven to be
the false accusations. In 2019, in a particular judgment, Calcutta High court ruled that pushing
accidently is not outraging modesty of woman under the Section 354. In S vs Maharashtra, the
court was of the view that throwing chit on a unmarried women amounts to outraging modesty.

The Current Scenario

The present scenario pertaining to the legal stance of the said provision has seen to be mostly
used fraudulently, however, the provisions have been proven to be highly woman centric in order
to protect women from such grievous offences. The onus lies on the man to prove that he is
innocent. Moreover, in such cases, if a woman wants to file the FIR against a male, the police
has to register it, even if it is mala fide, the police official cannot deny registering the same as it
was being held in Lalita Kumari v. Government of U.P, 10and in Amit Kumar v. Joginder
Singh,11 the SHO was being suspended and it was held that there are mandatory directions to the
police departments of all the states that the police officials are duty bound to register the FIR in
respect of the complaint which discloses cognizable offence and denial to register the same could
lead to stringent action. In contradiction to the misuse and abuse of the law by the women, it has
been noticed that in certain incidents, huge of number of cases of outraging modesty remain
unreported and women tend to suffer throughout their lifetime. The position tends to stand in
extreme degrees of different situations and there is the need to bring out the amendments that not
only protect women but also aims at preventing the misuse of the same. The modifications
should be such that provisions strike equilibrium. It should be put across that all the offences
pertaining to outraging modesty must be made non bailable and the authenticity of the charges
made by women at the time of reporting the offence should be checked well in advance in order
to prevent the misuse.

Misuse of provisions

The infamous KPS Gill who was being convicted under Section 354 for slapping the posterior of Rupan
Deol at the instance of a particular party, the judges made strong statement while upholding his
conviction that it was impossible to believe that he had no intention to outrage the modesty of the victim
as it was extremely difficult to compare the act of slapping the posterior of the woman to shoving her in a
course of random argument or a quarrel and thus it becomes the takes a great judicial latitude to even
compare the same. In order to understand the common misuse and have a clear understanding of what
does not constitute the outraging modesty of woman, it is important to note that mere knowledge
that the modesty of a woman could likely be outraged is completely sufficient to constitute the

10
AIR 2013 SC 243
11
CRM-M-41761-2015 (O & M),2019
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offence without any calculated or conscious intention of outraging her modesty. The Section 354
applies to each and every sexual act which is committed or has been intended against the
particular woman, thereby actually falling short of penetration. However, it has been observed
that, time and again, there has been a lack of actual assessment of the entire issue as whole in its
great depth and it is this fallacy of not being able to carefully consider the intent of the law and
measure the weight of a complaint of a particular person which affect the courts throughout the
board. In addition to the same, it has also been observed that mere lack of protest on the part of
woman against the offence being committed should not be termed as alibi for the offender.

The leading judgment was being given by the Hon’ble Supreme Court in the case of
Vidyadharan v. State of Kerala, 12wherein, the act fell under the aggravated form of the offence
which was needed to be punishable under Section 354 of Indian Penal Code, thus, it was held
that no separate sentences were being awarded for the offence of outraging modesty. Moreover,
the appeal before the High Court of Kerala was brought about and this too did not bring any
relief to the appellant. However, the Supreme Court, for the offence under the Section 354 of
Indian Penal Code and the Section 448 of Indian Penal Code, decided to sentence the accused for
the custodial sentence, thereby, according to the records it was revealed that it was of
approximately three months and should accordingly meet the ends of justice taking into
consideration the background facts and certain features which were special to the case. In the
matter of Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 13 where, the accused who was popularly
known as super cop named K.P.S. Gill was being convicted for slapping the posterior of the
petitioner, R.D. Bajaj, accurately highlights the problematic and the remarkable nature of male
chauvinism often meted out towards women in the society

 BUYING AND SELLING OF MINORS FOR PROSTITUTION

Human trafficking places vulnerable people in highly exploitative situations, stripping victims of
their freedom and choice. Besides, it is a highly lucrative organised crime that amounts to a
billion-dollar industry. Minors are everyday bought and sold for the purpose of prostitution.
Child prostitution comes in many forms, including child trafficking. The forced migration of
minors for sexual purposes has been the topic of trafficking studies. Not only should there be
stringent laws against child prostitution, but also against other forms of child maltreatment such
as child trafficking and child pornography. Instead of penalising the victim, the law should focus
on the trafficker. The primary goal of this article is to assess the scope of child prostitution and to
identify the reasons and risks that child prostitutes experience. Medical dictionary defines it as
the performance of sexual work by a person considered to be a child in a particular jurisdiction.
Child prostitution is the sexual exploitation of a child for monetary or in-kind recompense, which
is typically but not always organised by an intermediary (parent, family members, procurer, etc.).
The majority of child prostitutes are between the ages of 11 and 18. These youngsters are mostly
from broken homes, and they are enticed by loving older adults who offer them food and shelter.
12
AIR 2004 SC 215
13
AIR 1996 SC 309.
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Child pornography is inextricably linked to child prostitution. It refers to the visual or aural
representation of a kid for the purpose of sexual enjoyment, and it includes the creation,
distribution, and/or use of such material.

Causes of Child Prostitution: The main causes of child prostitution are:

1. Poor parental treatment.

2.Poor company.

3.Social norms.

4.Prostitutes from the family.

5. Inadequate sex education and media.

6. Previous rape and incest.

Related Provisions

The Indian Penal Code lends a helping hand to the special laws enacted to curb prostitution by
attacking the source of this evil. Section 366A makes procreation of a minor girl from one part of
place to another is punishable and section 366B, which makes importation of a girl below the age
of 21 years are punishable. These sections try to prevent prostitutions by strict penal action.
Section 372 and 373 makes selling and buying of minor girls for the purpose of prostitution, a
crime for which even 10 years of imprisonment and fine can be awarded.

Section 373

Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen
years with intent that such person shall, at any age, be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or
knowing it to be likely that such person will, at any age be], employed or used for any such
purpose, shall be punished with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.14

This section deals with buying, hiring or otherwise obtaining possession of minors for the
purpose of prostitution, etc. One is punishable under this section if he buys, hires or otherwise
obtains possession of a minor, whether a male or a female, under the age of 18 years, with intent
or knowledge that such minor shall, at any age, be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful or immoral purpose. An
offence, under this section, is complete as soon as the buying, etc, by the accused and the guilt,
knowledge or intent on his part are proved though the minor bought may not enter upon
prostitution until years after she has attained maturity or may not enter upon such a profession at
14
The Indian Penal Code, 1860 (Act 45 of 1860), s.373
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all.63 The section does not require that a minor, taken possession of by an accused person,
should necessarily be employed or used for the purpose of prostitution. It is quite enough that
such employment or use would be the probable result of the detention of the girl by the accused
though the accused might not have intended the result.

Essential Ingredients of Section

The offence consists in: (1) buying, hiring or otherwise obtaining possession of a minor, (2) who
is under the age of eighteen years, (3) with intent, or knowing it to be likely, that the minor will,
at any age, be employed, or used, for the purpose of prostitution or illicit intercourse with any
person or for a purpose which is both unlawful and immoral. To constitute an offence under this
section, it is not essential that obtaining of the possession should be from a third person; the
section is quite applicable to an agreement or understanding arrived at with the minor without the
intervention of a third person. There need not be a third party from whom possession of the
minor should be obtained. There are no words in the section as to the necessity of there being a
third party from whom possession of the minor is obtained. If the keeper of a brothel meets the
girl and by physical force or false representation, induces her to enter the brothel and keeps her
there, he undoubtedly obtains possession of the girl, and the fact that no third party is involved as
the giver of the possession is irrelevant. It is, therefore, enough if it is established that the
accused, in fact, obtained possession of the minor with intent that the minor shall be employed or
used for the purpose of prostitution. A person, who steals a minor girl under eighteen years of
age, may, thus, be held to have obtained possession of the minor within the meaning of s 373,
IPC.15

To establish an offence under this section, the prosecution must prove that:

(1) the accused bought, hired, or otherwise obtained possession of, a person in question;

(2) such person was, at that time, under eighteen years of age; and

(3) the accused did so with intent, or knowing it to be likely, that the said person will, at any age,
be employed or used for the purpose of prostitution or illicit intercourse with any person or for
any unlawful and immoral purpose.

Section 372

Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years
with intent that such person shall, at any age, be employed or used for the purpose of prostitution
or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to
be likely that such person will, at any age be], employed or used for any such purpose, shall be
punished with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine. The prevalence in the country of the menace of children being used

15
. R A Nelson (ed.), R A Nelson’s Indian Penal Code 612 (Lexis Nexis Press, New Delhi, 2005)
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for unlawful and immoral purposes is well-known. Doctors in nursing homes who, contrary to all
norms of professional ethics, sell a recently born child without ascertaining satisfactorily the
purpose for which the child is being purchased and without taking proper precautions to ensure
that the child may not fall in undesirable hands must, prima facie, be imputed with the
knowledge that the child, at some age, is likely to be employed or used for any unlawful and
immoral purpose within the meaning of s 372 of the IPC.24 This section, which is enacted to
protect the chastity of girls under the age of 18 years, prohibits the disposition of minor girls for
the purpose of prostitution or illicit intercourse.

Essential Ingredient of Section

The essential ingredients of the offence under this section are:

(1) there should be, by the accused, selling, or letting to hire, or another disposal of a person;

(2) such person should be under the age of 18 years;

(3) the selling, letting to hire, or other disposal should be with intent, or knowledge of the
likelihood, that such person shall, at any age, be employed or used for

(i)the purpose of prostitution, or

(ii)illicit intercourse with any person, or

(iii)any unlawful and immoral purpose.

The offence, made punishable under this section, is complete when the person, intending that a
minor should be employed or used for the purpose of prostitution or for any unlawful or immoral
purpose, or knowing it to be likely that such minor will be employed or used for any such
purpose, intentionally places the minor in a position calculated to bring about the result intended
or known to be likely. The offence, under this section, consists in the intentional or conscious
exposure of the minor to the danger of degradation. If the accused did all, which they could, to
expose the minors to such danger, it is immaterial whether the customary ceremonial
accompaniments, for giving the prostitutes a particular status, were actually completed or not. An
offence under s 372, IPC may be made out on the proof of sale of a girl, even without the proof
of change of possession.

The meaning to be given to the words ‘illicit intercourse’ for the purpose of this section, is
provided by Explanation II. In substance, intercourse is illicit if it is between persons who are not
united by marriage or do not have a quasi-marital relationship.It is, therefore, no defence, after
the amendment of this section in 1924, that there was only a single act of intercourse and that the
girl was not used habitually for the purpose of indiscriminate sexual intercourse.
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Bhagchand vs Emperor16

In this case accused No. 1 along with accused No. 2 was charged with the offence punishable
under Section 373 of Indian Penal Code. Both accused were allegedly in possession of a girl
under eighteen years of age with intent that she would be used for the purpose of illicit
intercourse. Then, the Additional sessions Judge of Poona has convicted them for the offence
punishable under Section 373 of Indian Penal Code. Against this conviction accused has filed an
appeal in the hon’ble Bombay High Court. Hon’ble Bombay High Court held that it is often a
man enjoying sexual intercourse with a woman possesses her but that possession within Section
373 means something more than that. And also observed that the learned additional sessions
have drawn the attention to the evidences, which clearly shows that the girl had been in complete
control of the accused for a week. Hence, appeal is dismissed.

CONCLUSIVE REMARKS

There is no straight jacket rule to eliminate the sufferings of women. However, small bullet
solutions need to be integrated to achieve the larger aim to uphold the rights of human. The
offence of outraging a woman's modesty has undergone a significant change. According to the
National Crime Record Bureau's records, there have been there have been 8685 and 7305
incidences of women's modesty being insulted, respectively. In 2015 and 2016, amendments
were made to section 509 of the Indian Penal Code. It has been stated clearly with the substantial
reform to the entire criminal legislation in 2013, it was discovered that the misuse of the
provisions has also been on the rise. To eradicate evil from society, it is critical to first put a stop
to the exploitation of the provisions and protect the safety of both men who are frequently
wrongfully accused and women who are frequently harmed. Furthermore, a contrast must be
made between the conceptions of rape and women's outraged modesty, as there is always a
duality. Because of the near similarities between the facts and circumstances of the cases, rape
and outraging modesty do not have a distinguishing feature.

16
AIR 1934 BOM 200