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Man who touched woman’s feet without consent is guilty, same applies to any body part: Bombay HC

Neighbour crept into the woman’s house at night and sat on her bed while her husband was away. HC says act showed ‘sexual intent’ and violated the woman’s ‘inherent modesty’.

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New Delhi: The Aurangabad Bench of the Bombay High Court upheld the jail term of a man who touched the feet of a woman without her consent and was held guilty of outraging her modesty.

The woman, from Partur town in Jalna district in Maharashtra, lodged an FIR saying that the accused touched her feet without her knowledge one night in July 2014. Her husband was not at home, and she and her grandmother were the only people in the house. 

The accused, a neighbour, first asked the woman when her husband would be back. Then, around 11 pm, the sleeping woman was jolted awake to find that someone was touching her feet. She found the neighbour sitting near her feet. 

On the return of the woman’s husband the following day, an FIR was filed.

The accused pleaded alibi, claiming that he was not at the spot of the alleged incident. He further submitted that since the door was not locked from inside, it was evidence of the victim’s consent to enter the house.

The accused said that he did not have “sexual intent” in touching the woman’s feet. He also raised an objection to the inordinate delay of almost 12 hours in filing the FIR.


Also read: Right to reputation vs woman’s right to dignity — what court said in Akbar-Ramani verdict


Two months in jail

In June 2015, the judicial magistrate convicted the man for criminal trespassing and, under Section 354 of the Indian Penal Code (IPC), outraging the modesty of a woman. The man was sentenced to one year’s rigorous imprisonment for trespassing and two months’ jail for being held guilty under Section 354.

The accused moved the HC after the Jalna sessions court upheld his conviction.

A single judge bench of Justice M.G. Sewlikar at the Bombay HC affirmed the trial court’s order that held the accused guilty and upheld the sentence. 

Justice Sewilkar referred to a 1996 judgment of the Supreme Court to understand the meaning of ‘modesty’ as defined in Section 354 (assault or use of criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC).

The court recalled that the ultimate test to ascertain whether modesty has been outraged “is an action which has the potential to shock the decency of a woman”.

The HC said that in essence, an act done to or in the presence of a woman which is clearly suggestive of sex, according to the common notion of mankind, is penalised by Section 354 of the IPC, which makes outraging the modesty of a woman a criminal offence.

Modesty is inherent

The court reaffirmed that a woman’s modesty is inherent, and she possesses such ‘modesty’ right from her birth.

The court held that the applicant’s act of sitting on the victim’s bed and touching her feet meets the threshold required under penal provision.

It noted that the accused’s actions of asking about the husband’s return, venturing into the house and subsequently touching the woman’s feet indicated “sexual intent”, thereby violating her modesty. “This behaviour smacks of sexual intent,” the court noted.

The court went on to hold that touching “any part of the body of a woman” without her consent, in that hour of the night, would amount to a violation of a woman’s modesty.

Justice Sewilkar also rejected the defence of alibi, since the accused could not produce any evidence to this effect.

The court also condoned the delay in lodging the FIR, noting that the delay due to the victim’s wait for her husband could not be questioned.

Court’s controversial verdicts 

The Bombay High Court decision comes amidst a series of controversial decisions from the HC on Section 354 and the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The Bombay HC came under fire after Justice Pushpa Ganediwala acquitted a man charged with groping a girl, saying that “skin-to-skin contact” was necessary for sexual assault as defined under POCSO.

In another case, the same bench ruled that the accused’s actions of holding the hands of a five-year-old girl and unzipping his pants did not meet the definition of ‘sexual assault’ under POCSO.

In response to objections raised by the Attorney General of India K.K. Venugopal and the National Commission of Women, the Supreme Court later overturned the HC verdict.

The apex court had interpreted the words “touch” and “physical contact” as not being restricted to “skin to skin”. It held the interpretation by the Bombay HC as defeating the purpose and object of the statute.

In August 2021, the Nagpur Bench of the Bombay HC held a man guilty under Section 354 for throwing a piece of paper at a woman professing his love. The modesty of a woman is her “most precious jewel”, the court had said.

(Edited by Saikat Niyogi)


Also read: Maha Assembly passes Bill which provides for stricter punishment, death for crimes against women


 

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