The Kerala High Court in a recent order quashed a criminal complaint against 3 men for calling a woman 'prostitute' and observed that the said act 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.
The court however said that the act of calling a woman a 'prostitute' in her absence may amount to other offences under other legal provisions but not 'insulting a woman's modesty.'
The high court was hearing a case where three men at a flat complex were accused of insulting a woman resident's modesty by calling a her a 'prostitute' while speaking to other residents and nearby shop owners, but not in her presence.
The court said that 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.
A bench of Justice A Badharudeen held that Section 509 of the IPC, which is now replaced by Section 79 of the Bharatiya Nyaya Sanhita, whic penalises the act of insulting a woman's modesty would not be applicable in this case.
Section 79 of BNS says that "Word, gesture or act intended to insult modesty of a woman - 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."
Relying of previous cases cited in court where it was held that such an act can be defamatory in nature and mat come under defamation, but cannot be punishable under Section 79 of BNS (Earlier Section 509 of IPC).
"Adverting to the penal provisions under Section 509 of IPC and under Section 79 of BNS and the ratio of the decisions referred, in order to bring home an offence punishable under Section 509 of IPC or under Section 79 of BNS, the first part is utterance of any word, makes any sound or gesture, or exhibits any object with an intention to insult the modesty of a woman, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman. The second part provides that the above overt acts done with intention to intrude upon the privacy of such a woman. 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 order explained.
The order further noted that the second part of S.509 of IPC is intruding upon the privacy of a woman.
"Thus the question is; while referring the defacto complainant as a prostitute before the inmates of the flat and nearby shop owners, whether the accused persons intruded upon the privacy of such woman. The word ‘intrude’ is not defined in the IPC. Its dictionary meaning is to put oneself deliberately into a place or situation where one is unwelcome or uninvited. To put it otherwise, intrude means trespass, horn in, pry into or to join in something without invitation or consent to the privacy of the woman."