Sexting in consensual relationship will not amount to insulting modesty: Mumbai Court

A Mumbai court recently observed that sending sexually explicit messages to a woman whom the accused was proposing to marry and who had not raised any objection to the same at the relevant point of time, will not amount to insulting her modesty under Section 509 of the Indian Penal Code (State of Maharashtra v. Jignesh Vyas & Anr.)..Additional Sessions Judge DD Khoche noted that the accused had sent the messages to the woman who at the relevant time had not raised any objection to the same and had also expressed her desire to marry him.“Sending such messages in such a premarital period, may delight the other one. It may give the happiness, may give the feeling that someone is closer to him or her, to understand his/her emotions,” the Court opined..The accused Jignesh Chandulal Vyas had been booked in 2010 for offences under Sections 376 (rape), 509 (outraging modesty) and 420 (cheating) of Indian Penal Code. By way of background, the woman had met the accused through a matrimonial site in 2007 and tried to marry him despite opposition from the mother of the accused who was against the match. The complainant woman was adamant and started living with the accused. Eventually, there were quarrels between the accused and the complainant and the marriage between the two could not take place.Thereafter, though she tried to call on accused on his mobile phone but it was switched off. When contacted on office phone, he conveyed to her through others that he was not in office. Feeling deceived, the woman lodged a complaint against the accused. Initially, he was charged for insulting modesty of woman under Section 509 IPC and cheating under Section 420 IPC besides provisions of Dowry Prohibition Act. Subsequently, the charge of rape was added on the ground that the man had sexual relationship with the woman by giving false assurance of marriage..On the charge that the man had sent her obscene messages to outrage the woman’s modesty, the Court said that in the event there was displeasure from the woman’s side, she should have conveyed the same to the man and he may not have repeated the mistake.."The purpose of it, was to put up his expectation before her, to arouse her with similar feeling of sex, which may give the happiness even to her etc. However, in no way those such SMSs can be said as were sent to insult her modesty. There does not find such intention in sending such SMSs. Had there been such intention, the words could have reflected the same," the order stated. .On the charge of rape, the Court deduced that the sexual relationship between the two parties was not forceful, but “it was the sexual relationship which had taken place by both the major parties at their own wish to experience the sex prior to the marriage.”.Judge Khoche opined based on evidence that it was the self decision of the informant to go for such sexual intercourse but it was not the case that promise of marriage was false.“Even after respecting the emotions of the informant, respecting her fighting for justice for long period of near about 11 years or more, this Court is of humble opinion that this is not the case which would show that the offence of rape has been committed by accused,” the order stated..The Court also failed to find any intention on the part of the accused to give false promise of marriage. Judge Khoche noted that the man had been in a relationship for more than 2 years with the woman, and had kept his word to marry her as far as possible."But it was the quarrel on the ground of stay after marriage and thereafter, by getting tired of his indecisiveness and getting surrendered before his mother’s wish and failing to handle and tackle the problem stood before him in proper manner, he came back. …it is certainly not the case of false promise of marriage. Rather it is the case of his failure to make substantial efforts,” the order said..The Court also said that the issue between the two parties seemed to have been regarding the place of residence post marriage since his mother seemed to have opposed the idea of the accused and complainant living separately.Judge Khoche opined that the accused having been brought up by his mother for at least 20-25 years, could not have denied her wish at once or strongly opposed, and had love, affection and bonding with her.In the present case, the accused being a young person may not have been ready to leave the bride and at the same time, felt bound to his mother’s consent.“It is usual practice in Hindu tradition that all members in family reside together. Even the new bride, who comes after the marriage at her in-laws house, does not start to stay separately with her husband, immediately, but follows the tradition as far as possible or at least for year or some months to stay together with in-laws. Therefore, it is also a tradition in Hindu families that while fixing the marriage, the groom and bride seek consent of their relatives or at least family members,” Judge Khoche said in the order.The Court, therefore, acquitted the man of all charges..[Read order]