The Aurangabad bench of the Bombay High Court in a recent judgment addressed a delicate matter while expanding the definition of “outraging the modesty of a woman”. The criminal revision application of Parmeshwar Dhage, the accused, who was convicted by the trial court for “touching the feet of a woman while she was asleep”, was set aside by a single judge bench.
Justice MG Sewlikar in the case of Parmeshwar Dhage vs the State of Maharashtra made a significant observation, stating that “touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to violation of modesty of a woman.” The Indian Penal Code 1860 makes it a punishable offence, as stated under Section 354: “Assault or criminal force to woman with 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 thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
According to the facts of the case, around 11 pm on July 4, 2014, a 25-year-old married woman from the Jalna district in Maharashtra felt that someone was touching her feet. She awoke and found that Dhage was sitting near her feet on her bed. She shouted which woke up her grandmother-in-law and they raised an alarm.
While narrating the events of that night in the High Court, the woman said that only she and her grandmother-in-law were in the house as her husband had gone to another village. Around 8 pm, Dhage went to the woman’s house and inquired as to when her husband would be returning. She informed him that her husband would not be returning for the night. The same night, the woman closed the main door but didn’t bolt it. Both the women then went to sleep. A complaint was later lodged by the woman on July 5, 2014 at Partur police station in Maharashtra.
The Indian Penal Code doesn’t explain or elucidate on what it means by “modesty”. However, the apex court in the Rupan Deol Bajaj and Anr vs KPS Gill and Anr AIR 1996 has defined the term “modesty”. During the discussion in the case, the question of modesty arose under State of Punjab vs Major Singh, AIR 1967 SC 63, where the Supreme Court bench, comprising Justice RS Bachawat and Justice JR Mudholkar, while responding to the question as to whether a girl child of seven and half months old possesses “modesty” which could be outraged, said that whenever any act is done to or in the presence of any woman which is plainly suggestive of sex or any sexual act in consonance with the common notions of the mankind, that must fall within the mischief of Section 354 of the Indian Penal Code.
Further, Justice Bachawat noted that the sex of a woman is the very essence of her modesty and a woman possesses modesty from her very birth being the attribute of her sex. Mentioning the dictionary meaning of the word “modesty” and the interpretation of the word in Major Singh’s case delineated by the Supreme Court, any action which is capable of “shocking the decency of a woman” could be perceived as the ultimate test to ascertain as to whether the modesty of a woman has been outraged.
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When the above test is applied to the facts of Parmeshwar Dhage vs the State of Maharashtra, it is amply clear that the act of Dhage, wherein he was sitting near the woman’s feet on her cot and touching her feet at such a late hour, was clearly capable of “shocking sense decency of any woman.”
Some judges have given a different interpretation on the issue. The controversial verdict in 2021 given by Justice Pushpa V Ganediwala, the Additional Judge in the Bombay High Court, had sparked a huge uproar in society as well as amongst the legal fraternity. She held that a “skin-to-skin” contact is necessary in order to attract charges under the provisions of the Protection of Children from Sexual Offences (POCSO) Act.
However, the “skin-to-skin” verdict of the Bombay High Court was set aside by the apex court which said that it was a narrow interpretation of the law and held that any physical contact made with a sexual intention comes under the purview of POCSO. Hence “skin-to-skin” contact is not the only criteria to decide if the child is sexually abused or not.
Justice Sewlikar observed that the conduct of Dhage distinctly smacked of his sexual intent towards the woman as there was no feasible reason for his presence in her house during such odd hours of the night. Moreover, the counsel appearing on behalf of Dhage could not provide a satisfactory explanation for his presence in the woman’s house.
Justice Sewlikar also stated that it amounted to violation of modesty of a woman when a stranger especially in the dead hours of night, touches any part of the body of a woman without her consent.
Justice Sewlikar observed that Dhage did not enter the woman’s house with any reasonable cause. As part of his pre-hatched plan, he had made sure that the husband of the woman was not returning for the night by making a casual inquiry that same evening and later he ventured into the house.
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The judge noted that the above details were enough to establish the fact that Dhage went there with a sexual intent and thus violated the modesty of the woman. Hence the judge held that there was no error committed by the trial court in holding Dhage liable for molesting the woman.
Pratik Bhosle, the counsel appearing for Dhage, contended that he was not present at the spot of the incident on the particular night as he is a resident of Jalna District. The counsel further pointed out that the door was not bolted from inside when women who are alone in the house usually bolt the door from inside. The delay in filing the complaint was also mentioned by the counsel, as it was lodged after 12 hours.
Replying to the objections raised by Dhage’s counsel, the counsel for the woman, SW Munde, said that the incident took place around 11 pm, so the woman waited for her husband to return from another village and then lodged a report on his arrival, hence the report was lodged late.
The judge remarked that the conduct of the woman cannot be faulted as she chose to wait for her husband to return and then filed a report. Hence, there was no frailty in the appreciation made by the trial court. On the other hand, Munde supported the judgment of the trial court sentencing Dhage to imprisonment for one year while convicting him for offences committed under Section 451 for house trespass and Section 354A for sexual harassment under the Indian Penal Code.
—Mansi Sharma and India Legal Bureau