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Husband can be prosecuted for outraging modesty of wife
Nimeshbhai Bharatbhai Desai Vs State Of Gujarat
CRIMINAL MISC.APPLICATION NO. 26957 of 2017
About/from the judgment:
Further, under section 354 reference is made to "any woman" suggesting that a person may be held guilty of outraging the modesty of any woman including the one who is his wife. Some specific instances are, however, to be examined before arriving at the conclusion that a husband may be held guilty of outraging the modesty of his wife. These are:
(I) If the husband expresses his affection towards his wife in public in an unkind manner such conduct will (a) amount to an indecent behaviour; (b) be against 'public morality'; and (c ) amount to an outrage under section 354.
(ii) In case the husband and wife are alone, it may be essential that some liberty be permitted to the spouses with regard to certain acts which are a necessary part of the conjugal relationship. Certain overtures or acts of affection and love in private by the husband, which may not be acceptable to the wife in public, will have to be conceded as not amounting to outrage under the provision.
(iii) Highly personal acts of love and affection by the husband which may or may not be liked by the wife, if done in public, may go against public morality and fall under section 354 as all its essential ingredients are present in such a situation.
(iv) Such personal acts done by the husband as are not acceptable to the wife even in private and also not approved by society, should also fall under the scope of section 354. Today no woman or society would approve of perverted sexual acts as being a legitimate part of the spousal relation.
63. As stated above, If between the two spouses one spouse wants healthy and normal sexual relations and the other is desirous of having perverted sexual relations such as cunnilingus and fellatio as alleged by the wife in the present case then normal sexual relations between the spouses which form basis of a happy marital life would be floundered. On the bedrocks of sexual aversion on the part of the spouse who is normal and not deviant
64. It is conceivable that in case the husband assaults or uses criminal force against her wife the act will amount to an outrage under section 354, irrespective of the fact whether it was done with or without her consent or in the absence of a third party. The question of husband's knowledge, intention or her developed sense under the modern set up would become irrelevant and a deliberate outrageous conduct of the husband is indefensible. It would thus seem to follow that a husband may be held guilty of an offence even under section 354 if the victim is a woman who is his wife.
65. In construing section 354, it is irrelevant to consider the age, physical condition or subjective attitude of the wife against whom the assault has been committed or criminal force is used. The word woman under the IPC denotes a female human being of any age (S. 10, IPC). The earlier interpretation in Soka v. Emperor (AIR 1933 Cal. 142) that the protection of the provision is available to women who are old enough to feel the sense of modesty and whose sense of modesty is suffi- ciently developed, is no longer acceptable. In earlier cases where assault was committed or criminal force used against girls of tender age, conviction of the accused rested mainly on behaviour of the victim. In Girdhar Gopal v. State (1953) 54 Cri.L.J. 1964 (M.B.) the accused confined the victim, a girl of six years in a room and asked her to remove her clothes. She refused to do so and shouted for help. The act of the applicant in confining the girl, making her lie on a bed and then sitting on her and becoming naked was held as amounting to use of criminal force with the intention or knowledge that the girl's modesty would be outraged. The court was apparently of the opinion that since the girl shouted for help, she had had her sense of modesty developed. In another case, Emperor v. Tatia Mahadev (1912) 13 Cr. L.J. 858 (Bom.) the accused took a girl, six years old, to his room and made her to lie down and he lay on her. The girl screamed and ran away. The magistrate took the view that the girl being only six years old was too young to have any sense of modesty developed. The High Court negatived the view in the following words:
"It seems to us that there are many answers to this view of the learned Magistrate's. One sufficient answer may be found in the proved facts of this particular case that the girl screamed and ran away when the accused began his assault upon her. (Ibid)"
Since the outrage was felt by the victim, and she screamed and ran away, the court had seemingly no difficulty in convicting the accused under section 354 of IPC.
66. The question whether any reaction of the victim as also her age are decisive or not for determining the guilt under section 354 were resolved by the Supreme Court in State of Punjab v. Major Singh (supra). In this case the accused caused injury to the vagina of a seven and half months old child by fingering. The court held that the provision does not require that the outrage must be felt by the victim. If such an interpretation is given to the provision as would require that to punish a person, the victim must be having a developed sense of modesty, "it would leave out of the purview of the section assaults not only on the girls of tender age but on even grown up woman when such a woman is sleeping and did not wake up or is under anaesthesia or stupor or is an idiot."1 It was held that the legislature did not intend that the outrage to be an offence must be felt by the victim. Bachawat J. observed:
"A female of tender age stands on a somewhat different footing. Her body is immature and her sexual powers are dormant. In this case the victim is a baby seven and half months old. She has not yet developed a sense of shame and has not awareness of sex. Nevertheless, from, her very birth she possesses the modesty which is the attribute of her sex. (Id. At 68)"
67. It would seem to follow that modesty is considered to be an attribute of every female since her birth and an outrage against a wife will be punishable irrespective of the fact that she is of a tender age or developed enough understanding so as to appreciate the nature of the act, or to realise that it is offensive to her senses. There is no reason for confining the protection afforded by section 354 only to the wives who have attained enough understanding to comprehend that the act complained of was intended to corrupt their morals or offensive to propriety of womanly behaviour. The result is that under section 354 age of the wife or her reaction is not a decisive factor in determining the question whether her modesty was outraged or not. This approach would suggest thus that women have modesty irrespective of their age and understanding of it. Modesty is an inherent characteristic of womanhood independent of any individual's personality.
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