The Kerala High Court recently observed that the act of referring to a woman as a 'prostitute' may not constitute the offence of insulting a woman's modesty under Section 509 of the Indian Penal Code (IPC) if the remark was not made in her presence [Anson IJ & ors v State of Kerala & ors].
The Court was dealing with a case where three men at a flat complex were accused of calling a fellow member of a residents association a 'prostitute' while speaking to other residents and nearby shop owners, but not in her presence.
Justice A Badharudeen clarified that while such an act may be an offence under some other legal provision, Section 509 of the IPC (now replaced by Section 79 of the Bharatiya Nyaya Sanhita, 2023) which punishes the act of insulting a woman's modesty would not be applicable.
The criminal case had been lodged against the three accused men after the complainant woman got to know from others that these men had allegedly referred to her as a prostitute.
The alleged remarks were made amid certain disagreements between the accused and the complainant, all of whom were part of the same residents association.
The Kerala police charged the three accused men under Sections 34 (common intention) and 509 (insulting a woman's modesty) of the IPC.
The accused men then filed a plea before the High Court to quash the criminal proceedings. Their counsel argued that even if the alleged remarks may be defamatory, Section 509 of the IPC cannot be invoked.
To decide on the matter, the Court examined the ingredients of the offence defined under Section 509, IPC.
The Court noted that the first part of this provision punished those who utter words or make gestures to insult a woman's modesty, with the intention that such actions are heard or seen by the woman in question.
In this case, the judge noted that the defamatory remarks were allegedly made to third parties and not directly to the complainant, who learnt of the remarks through other people.
The Court concluded that this meant that the first part of Section 509 IPC would not apply in this case.
"Here, the first part of the offence is not at all made out since the defacto complainant has no case that the accused persons used the derogative text directly to the defacto complainant either to be heard or to be seen by her and the allegation is that the accused stated so to the inmates of the flat and nearby shop owners and the defacto complainant has no direct knowledge regarding the same," the Court observed.
The Court added that the second part of Section 509 IPC spoke of acts intended to insult a woman's modesty, which are intended to intrude on the woman's privacy.
The Court opined that in this case, since the remarks were made in a general setting and not directly aimed at the complainant, they did not constitute an intrusion into her privacy.
It concluded while the remarks may be defamatory, they did not appear to meet the criteria for the offence defined under Section 509, IPC.
"Even though the statement alleged to be spoken by the accused persons was not intending to be heard by the defacto complainant or seen by her, but to third parties, it may attract some other offence, the same itself would not constitute an offence dealt in second part of Section 509 of IPC prima facie," the Court said, while quashing the criminal case against the three petitioners.
The petitioners were represented by advocates John Sebastian Ralph V, Vishnu Chandran, Ralph Reti John, Giridhar Krishna Kumar, Appu Babu, Vishnumaya MB, Geethu TA, and Apoorva Ramkumar.
Advocates PV Saritha Venugopal and Basil Mathew represented the complainant.
Senior Public Prosecutor Renjit George appeared for the State.
[Read Order]