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Criminal Law

Offences Relating to Criminal Force and Assault Against Woman

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 22-Oct-2024

Introduction 

  • Chapter V of the Bharatiya Nyaya Sanhita, 2023(BNS) states the provisions for the offences related to using criminal force and assault against woman. 
  • A separate segment has been introduced under the BNS for such crimes against woman for the first time. 
  • Section 74 to Section 79 of BNS states the provisions for the offences and punishment related to offence of using criminal force and assault against woman 

Assault 

  • A person commits assault when they make a woman fear that they will use force against her. 
  • Making threatening gestures, raising a hand to strike, or verbally threatening physical harm are all forms of assault. 
  • The woman need not be physically touched for it to be assault. 
  • Mere words do not amount to an assault but the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.  
  • To constitute assault, it is not necessary that there should be some actual hurt caused. 
  • The threat must be credible and immediate to constitute an offence of assault. 

Criminal Force

  • Using any force against a woman without her consent is criminal force 
  • This includes pushing, shoving, touching inappropriately, or any unwanted physical contact 
  • The force used can be mild or severe - any non-consensual touch qualifies 
  • Intent to cause harm is not required - just the deliberate use of force 

Sexual Assault 

  • Any sexual act performed without a woman's consent constitutes sexual assault. 
  • It includes unwanted touching of private parts, forced kissing, or other sexual contact with a woman. 

What are the Legal Provisions for the Offence Related to Criminal Force and Assault? 

  • Assault or Criminal Force to Woman with Intent to Outrage her Modesty. (Section 74): 
    • Outraging Modesty:
      • Outraging modesty involves acts that are offensive, indecent, or degrading to a woman's sense of decency and morality. 
      • It includes acts like inappropriate touching, forcible disrobing, indecent gestures or remarks with the intent to insult modesty. 
        • This section deals with assault or criminal force to woman with intent to outrage her modesty. 
        • It states that whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby 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.
  • Sexual Harassment (Section 75): 
    • Sexual harassment  
      • It is a pervasive and deeply rooted issue that has plagued the societies worldwide. 
      • Sexual harassment is in grave violation of the fundamental rights of a woman. It means any unwanted conduct of sexual nature 
      • In India, it has been a matter of serious concern, and the development of laws to combat sexual harassment is a testament to the nation's commitment towards addressing this problem. 
      • As per Subsection (1) of this section a man committing any of the following acts: 
        • Physical contact and advances involving unwelcome and explicit sexual overtures. 
        • A demand or request for sexual favours. 
        • Showing pornography against the will of a woman. 
        • Making sexually coloured remarks, shall be guilty of the offence of sexual harassment. 
      • As per subsection (2) of this section any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.  
      • As per subsection (3) any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
  • Assault or use of Criminal Force to Woman with Intent to Disrobe (Section 76): 
    • This section states that whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
  • Voyeurism (Section 77): 
    • This section states that whoever watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image. 
    • Such person shall be punished with: 
      • First Offence: With imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine,  
      • Second or Subsequent Offence: With imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. 
    • A “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public. 
    • Dissemination of photos captured with the consent of the victim to the third person without her consent shall be punishable. 
  • Stalking (Section 78)
    • Stalking  
      • It is defined as a encompasses behavior such as persistent following or attempting to communicate privately with someone, with the aim of causing fear or distress. 
      • A stalker under BNS, is an individual engaged in the act of stalking. Stalking involves deliberately and persistently following or contacting another person without their consent, with the intention of causing fear or discomfort. 
    • As per subsection (1) of the section, any man who 
      • Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or 
      • Monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that— 
        • It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or 
        • It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or 
        • In the circumstances such conduct was reasonable and justified. 
    • As per subsection (2) of this section the punishment for stalking is as follows: 
      • First Offense: The accused may be sentenced to imprisonment for a term up to three years, or with a fine, or with both. 
      • Subsequent Offenses: If the accused commits subsequent offenses, they may be punished with imprisonment for a term up to five years, or with a fine, or with both.
  • Word, Gesture or Act Intended to Insult Modesty of a Woman (Section 79): 
    • Modesty: 
      • Modesty' is not explicitly defined in the IPC but refers to womanly propriety, decency, and reserve in behavior, speech, and conduct. 
      • A woman's modesty is intrinsically linked to her sex and femininity, regardless of age. 
        • As per this section whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object in any form, 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 with simple imprisonment for a term which may extend to three years, and also with fine.

Landmark Judgements 

  • State of Punjab v. Major Singh (1967): 
    • The ultimate test is whether the act is perceived as capable of shocking a woman's sense of decency. 
    • A woman possesses modesty by virtue of her sex from birth. 
    • The victim's age is irrelevant in determining outrage of modesty. 
  • State of Kerala v. Hamsa (1988): 
    • Outraging modesty depends on the customs and habits of society. Even gestures with such intention can attract Section 354 of IPC. 
  • Ram Mehar v. State of Haryana (1998): 
    • Catching hold of a woman, taking her to an isolated place, and attempting to undress her amounts to outraging modesty. 
  • Raju Pandurang Mahale v. State of Maharashtra & Anr. (2004)  
    • In this case the Supreme Court has described the essential ingredients of offence under Section 354 of the IPC: 
      • The person assaulted must be a woman. 
      • The accused must have used criminal force on her. 
      • Such an act must have been done with the intention to outrage her modesty. 
  • Tarkeshwar Sahu v. State of Bihar (2006): 
    • Modesty is an attribute associated with women as a class. 
    • The culpable intention of the accused is crucial, not the victim's reaction. 
    • Even if the victim is unable to perceive the outrage (sleeping, minor, etc.), the offence is punishable. 
  • Shri Deu Baju Bodake v. State of Maharashtra (2016): 
    • The Bombay High Court handled the tragic death of a woman resulting from persistent harassment and stalking by the accused. Despite the victim's clear resistance and disinterest, the accused relentlessly pursued and stalked her, even at her workplace. The High Court highlighted the relevance of utilizing Section 354D of the IPC to hold the guilty accountable for aiding and abetting suicide. 
  • Kalandi Charan Lenka v. State of Orissa (2017) 
    • In this case, the victim, a girl, approached the court regarding offensive comments made against her at school, which tarnished her character. Additionally, her father received offensive messages from an unknown mobile number, impacting his character. Upon learning of this, the father apologized to the victim and informed her of the situation. Despite this, the High Court denied bail, stating that the accused was prima facie guilty of sexual harassment. 
  • Union of India & Ors. v. Dilip Paul (2023) 
    • The Supreme Court has held that the allegations of sexual harassment should be considered within the broader context of the case and should not be judged merely on the basis of a procedural violation. 

Conclusion 

Crimes against women represent one of the most serious challenges facing our society today, demanding our immediate and sustained attention. These offenses occur across all socioeconomic boundaries, cultures, and geographic locations, affecting countless lives every day. While laws exist to protect women and punish offenders, the reality is that many cases still go unreported due to fear, shame, and societal pressure. The impact of these crimes extends far beyond physical harm, often leaving deep psychological scars that can affect victims for years to come.  Each step taken to protect women's rights is a step toward a more civilized and humane society.