The Hon’ble Metropolitan Magistrate of Mazgaon, Mumbai (‘Hon’ble Court’) vide its judgment dated November 22, 2022 passed in State of Maharashtra vs Rovena @ Aadnya Amit Bhosle (‘Judgment’), expressed certain observations, inter alia, on the scope of Section 354 of the Indian Penal Code, 1860 (‘IPC’).

Amongst other points for determination, the Hon’ble Court was pleased to arrive at its findings on the point that whether the offence contemplated under Section 354 of the IPC, i.e., ‘Assault or criminal force to woman with the intent to outrage her modesty’ can be perpetrated by a female. The said section has been reproduced hereunder:

354. Assault or criminal force to woman with the intent to outrage her modesty - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

While holding that the offence contemplated under Section 354 of the IPC can be committed by a woman, the Hon’ble Court clarified that the said offence is not a sexual offence and is attracted when assault or criminal force is employed which manifests in outraging the modesty of the woman.

The Hon’ble Court further clarified that the pronoun ‘he’ used in the expression “..that he will there by outrage her modesty..” must be interpreted in terms of Section 8 of the IPC, such that its import extends to both male and female.

In view thereof, the Hon’ble Court held that the commission of assault or criminal force in conjunction with the intention or knowledge on the part of the accused, such that the commission thereof is likely to outrage the modesty of a woman is sufficient to attract conviction under Section 354 of the IPC, irrespective of the gender of the perpetrator. The Hon’ble Court observed as under:

“For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having.”

The term ‘Modesty of a woman’ has not been defined in the IPC, however, the Supreme Court in Ramkripal S/O Shyamlal Charmakar vs State Of Madhya Pradesh, interpreted the said expression as under:

• Modesty for the purpose of Section 354 is an attribute associated with female human being as a class. It is a virtue which attaches to a female owing to her sex.

• Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.

Further, the Hon’ble Supreme Court, in State of Punjab vs. Major Singh (AIR 1967 SC 63) observed that the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. 

From the aforementioned judicial pronouncements, it is discernible that: 

• Section 354 is attracted when criminal force or assault is employed to outrage the ‘modesty’ of a woman.

• Modesty, from the perspective of a woman, comprises, inter alia, a sense of propriety.

• The acts constituting the offence under Section 354 may not necessarily be sexual in nature.  

• The use of word ‘whoever’ suggests that the section covers all such perpetrators regardless of gender.

• The perpetrator, irrespective of gender, must commit the aforesaid acts with the intention or knowledge that the act is likely to outrage the modesty of a woman.

In view of the judicial recognition that persons of all genders can effectuate acts which can culminate into the violation of the propriety of a woman, we are faced with a larger question as to the limited scope/ applicability of Section 354A of the IPC. Similar to Section 354, the acts contemplated in Section 354A are also likely to violate and outrage the modesty or propriety of a woman, more so, since they evidently carry sexual overtures.  In view thereof and in order to keep pace with the evolution of the society / drift in stereotypical societal constructs, it may be beneficial if all laws pertaining to protection from sexual offences, whether under the IPC including Section 354A, or the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘SH Act’), are made gender neutral.

In fact, it would be pertinent to note that in a recent judicial pronouncement by the Calcutta High Court in Dr. Malabika Bhattacharjee vs. Internal Complaints Committe, Vivekananda College & Ors., it was observed that sexual harassment, as contemplated under the SH Act pertains to the dignity of a ‘person’, which is associated with ‘her/his’ gender and sexuality. In furtherance thereof, the said judgment observed :

A. A person of a certain gender may hurt the modesty and dignity of a person of the same gender.

B. A person of any gender may feel threatened and sexually harassed when ‘her/his’ modesty or dignity is offended by any acts envisaged by Section 2(n) of the SH Act, irrespective of the perpetrator’s gender and sexuality.

The relevant excerpt in this regard is reproduced hereunder :

“13. That apart, the definition of "sexual harassment" in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.”

India, under the present regime, has been at the forefront of implementing initiatives and strategies for new India that are majorly at par with those of developed and developing countries. At this stage, it is pertinent to note that certain Asian countries have been pro-active in amending and implementing gender-neutral laws. A bare perusal of the laws pertaining to sexual harassment in Singapore, Turkey, Vietnam, Nepal, Saudi Arabia and Malaysia reveals that the laws pertaining to sexual harassment as discussed hereinabove are fairly gender neutral in nature.

While it may have seemed improbable at a certain point in the Indian society that a person other than a female may be sexually harassed, or that a person may be sexually harassed by a person of the same gender, in the dynamic context of the current and developing drift in societal paradigms, the same cannot be ruled out. Accordingly, it may be the need of the hour to afford protection from sexual harassment to persons of all genders, from perpetrators of all genders.

Deepali Chandhoke is a Partner, Shikha Thakur and Surabhi Sahgal are Senior Associates at DSK Legal.