OUTRAGING THE MODESTY OF A WOMAN:

INTER-SPOUSAL PERSPECTIVE

I Introduction
FOR MANY women, family is a site of oppression and inequality. Lately,
the legislature has recognised the need for intervention in the private
domain of 'family' and introduced significant changes in the law relating
to offences against wives.1 Notable among them is section 498-^4 of the
Indian Penal Code 1860 (IPC) which is steered towards prevention of acts
of cruelty against women by their husbands or his relatives including acts of
harassment arising out of dowry demands. Section 376-A of IPC makes
sexual intercourse by a person with his own wife, living separately under a
decree, usage or custom, without her consent, punishable. In view of these
changes there is need for critical examination of concepts like protection,
welfare and women's rights. They "remind us of the need for theory in
family law."2 It is in this context that the offence of 'outraging the modesty*
of a woman is subjected to re-examination here.
The point at issue is, whether a person can be held guilty of outraging
the modesty of his own wife? If a person assaults or uses criminal force
against any woman intending to outrage, or knowing it to be likely that he
will thereby outrage, her modesty, he commits an offence under section 354
of IPC. Its essential ingredients are the use of criminal force or assault
against a woman for the purpose of outraging her modesty. A person is
said to use force against another if he causes motion or cessation of motion
to that other by his own bodily power or by inducing any animal to change
his motion.3 Force becomes criminal when it is used with criminal intention
and without that other's consent.4 Whoever makes any gesture or prepa-
ration to give an apprehension to the other that he is about to use criminal
force is said to commit an assault.6 It follows that if this is committed or
criminal force is used with the intent or knowledge specified in the section,
the offender is guilty of outraging the modesty of a woman under section
354. It has been observed:
Of course physical assault is not necessary. But assault or use of
criminal force within the definition in section 350 or section 351
Indian Penal Code will certainly be necessary.*

1. The Criminal Law (First and Second Amendments) Act 1983.

2. Michael D.A. Freeman, The State, the Law and the Family (1984).
3. S. 349, Indian Penal Code 1860 (I.P.C.).
4. Id., s. 350.
5. Id., s. 351.
6. Aswini Kumar v. Raman Chandra, 1963 (1) Cri. LJ. 391 at 394.

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II Inter-spousal perspective
The offence created by section 354 is as much in the interest of the
woman concerned as in that of public morality and decent behaviour.7 Now,
if it is not only against the individual but also against public morality and so-
ciety, what will be the purview of this section in case a person uses criminal
force or commits an assault against his own wife or beloved? In Mi Hla So v.
Nga Than9, the accused Nga Than was in love with Mi Hla So. He pulled
her hair and hand in the presence of several persons. The force used in the
presence of several persons was held to be calculated to outrage the woman's
modesty under section 354. It was observed that "the assault suggested
to Burmese onlookers that the man and woman are on conjugal terms."
What follows is that had the woman been on "conjugal terms" the act of
the accused in pulling her hair and hand would not have been an outrage
of her modesty. Another aspect of this case is that a husband may not
be held guilty of outraging the modesty of his wife in case his act is an ex-
pression of affection and happiness and not of cruelty or infidelity.
What shocked the public morality of the Burmese in 1912 may not be
true today. At present, the expression of affection towards one's wife or
beloved in public like hugging or holding of hands may not be treated as an
outrage to a woman's modesty. But a cruel expression of affection such as
pulling of hair in public, even if the victim is one's wife or beloved may still
shock the public morality. Such act of the husband may amount to an
'indecent act' because in the present set up with the emphasis on individuals'
equality, personal rights, liberties and a flair for women liberation, it
would be rather impossible to think that a woman will not resent such
behaviour.
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:
(/) 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 sec-
tion 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 conjugal relationship. Certain overtures or acts of affec-
tion 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.

7. See, Mudholkar J. in State of Punjab v. Major Singh, A.I.R. 1967 S.C. 63

at 66.
8. (1912) 13 Cri. L.J. 53 (Burma).

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1990] OUTRAGING THE MODESTY OF A WOMAN 529

(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. In
A v. S9 the court pointed out:
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 bed-
rocks of sexual aversion on the part of the spouse who is normal and
not deviant.9"
(v) For an act to become an offence under the provision it must have been
done with the intent or knowledge specified therein and without the woman's
consent. The consent of a minor female wife of less than 15 years of age
for sexual intercourse is no consent in the eye of law.10 It is conceivable
that in case the husband assaults or uses criminal force against her
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. Questions of husband's knowledge, intention
or her developed sense under the modern set up 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.

i n Sense of modesty
In construing section 354, it is irrelevant to consider age, physical con-
dition or subjective attitude of the wife against whom the assault has been
committed or criminal force used. The word woman under IPC denotes a
female human being of any age.11 The earlier interpretation in Soka v.
Emperor12 that 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

9. A.I.R. 1985 Guj. 121.

9a. Id. at 123.
10. A sexual assault against a wife who is a minor of less than 15 years of age
amounts to rape. See exception to s. 375, IPC.
11. S. 10, IPC.
12. A.I.R. 1933 Cal. 142.

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was committed or criminal force used against girls of tender age, conviction
of the accused rested mainly on behaviour of the victim. In Girdhar Gopalv.
State13 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 Mahadev14, 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.15
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.
The questions whether reaction of the victim as also her age are decisive
or not for determining guilt under section 354 were resolved by the Supreme
Court in State of Punjab v. Major Singh.1* 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."17 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. Never-

13. (1953) 54 Cri. LJ. 1964 (M.B.).

14. (1912) 13 Cri. LJ. 858 (Bom.).
15. Ibid.
16. A.I.R. 1967 S.C. 63.
17. Id. at 67 (per Mudholkar J.).

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 1990] OUTRAGING THE MODESTY OF A WOMAN 531

theless, from her very birth she possesses the modesty which is the
attribute of her sex.18
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 wives who have attained enough understand-
ing 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.

IV Acts amounting to outrage

The next question is, which acts of the husband amount to an outrage.
To answer this it is necessary that we should look at the concept of a
woman's modesty in a general sense. IPC does not define the term modesty.
In Major Singh19 the Supreme Court appears to have confined 'modesty'
to sex as it observed:
When any act done to or in the presence of a woman is clearly
suggestive of sex according to the common notions of mankind that
act must fall within the mischief of this section.20
Bachawat J. also pointed out:
I think that the essence of a woman's modesty is her sex. The modesty
of an adult female is writ large on her body. Young or old, intelligent
or imbecile, awake or sleeping, the woman possesses modesty capable
of being outraged.21
It follows that anything done by the husband which is suggestive of sex
amounts to an outrage. Kissing violently in public, raising her skirt before
one's own or the wife's relatives,22 or taking off her clothes and stripping
her naked20 may all amount to an outrage under section 354. Embracing

18. Id. at 68.

19. See, supra note 11.
20. Supra note 16 at 67.
21. Id. at 68.
22. Principle derived from State of Rajasthan v. Vijairam, (1968) Cri. L J . 270.
23. See, State of M.P. v. Balulal, (1960) Cri. L J . 612.

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the wife in public, holding her breasts,94 sitting on her,25 or trying to open
the string of her clothes before others26 amount to outraging the modesty.
However, merely exposing the private parts in the presence of the wife and
others does not amount to an offence under section 354 as neither assault
nor criminal force is employed.27
Further the term 'modesty' connotes more than this. Its dictionary
meaning is the quality of being modest, decency, etc. The word decent
means that which is not obscene, reasonably good, fair, confirming to
approved social standards, kind, respectable.28 If the dictionary meaning
of the word is adhered to, the acts which are indecent, unfair, unkind, un-
reasonable and do not conform to approved social standards would be
naturally deemed outrageous to the modesty of a woman. Such acts may
assume a variety of forms. It all depends upon the custom and habits of
the people. For instance, uplifting the veil of a woman's pardah in
presence of her father-in-law, she being a village lady, would be justly
regarded as an indecent act outrageous to her modesty. Pulling of hair or
hand, pushing, obstructing the way, waylaying, may all come within the
mischief of the provision. Similarly, hurting her by putting a strong arm-
hold around her neck or waist will be covered by the scope and ambit of
section 354. Catching hold of a woman by her arm and dragging her may
also amount to an outrage irrespective of the fact that the act is done in the
presence of others or not.39 Throwing her on the ground is outrageous30
as the act is unkind and indecent.
It follows that if a person takes indecent liberties with his wife in public
he will be as much punishable as if he had outraged the modesty of another
woman. But in case the wife is below 15 years of age, then irrespective
of the fact that the husband and wife are alone or in public, any assault or
use of force against her may amount to an outrage.31 If they are
alone, the husband may be held guilty of outraging ihe modesty of his wife
if he does unkind, cruel or perverted sexual acts to her. In substance,
the question whether a person can be held guilty of outraging the modesty
of his wife must be answered in the affirmative, and section 354 should be
equally applicable to a person who commits an assault or uses criminal
force against his own wife.
V Relevance of criminal law
Having reached the conclusion that a husband may be held guilty of

24. See, Baldev v. The State, (1984) Cri. L J . N.O.C. 122 (Orissa).
25. See, supra note 22.
26. Follows from Rameshwar v. State of Haryana, (1984) Cri. LJ. 786.
27. See, supra note 6.
28. Webster's New World Dictionary 196, (1975).
29. Principle derived from Fakir v. Emperor, (1928) Cri. L J. 749 (Lahore).
30. See, Nuna v. Emperor, (1912) Cri. L J . 469 (Punj.).
31. In case the wife is below 15 years of age her express or implied consent
is not material. See, exception to s. 375, IPC.

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outraging the modesty of his own wife the question which requires consi-
deration is whether invocation of criminal law is appropriate in a husband-
wife relationship. It must also be decided whether a punitive rehabilitative
approach is to be taken. It may be emphasised here that outraging the
modesty of the wife is a part of the larger question of violence against wives
in the family. It is an aggressive violent act against her in which sex is
merely an ingredient.32 Any suggestion to cope with or confront violence
should equally apply to the incidents of outraging the modesty as it is
merely another expression of family disharmony manifested in aggressive
activity of outraging the modesty. In these cases the approach will thus rest
upon the treatment employed in cases of violence against wives.83 In his
earlier writings Paranas advocated the 'treatment' model for the cases of
family violence.33* However, more recently he withdraws decisively from
his earlier approach,34 and suggests that "incidents of inter-spousal violence
no matter how minimal, must remain subject to police intervention" as
"central to the function of the police and the criminal law is the protection
of the life and limb".35 It is necessary, he argues, to make a "breakthrough
to the consciousness of the people as to the seriousness of their behaviour"
through "the coercive, authoritative harshness of the criminal process."36
Freeman too is sceptical about a social welfare orientation.37 If affording
protection from acts of violence of the husband is the dominant purpose to
be served by criminal law, the victims of outrage should also be given full
protection without any discrimination between married and unmarried women
and notwithstanding the fact that the offender is the husband.
It is, however, doubtful that invocation of criminal process in case of
outraging the modesty, will achieve anything in terms of improving the
marital relationship, the mutual respect which husband and wife should have
for each other, or the husband's ability to understand and control his
aggression.** McFadyen suggests that the family court be designated as
the court of first instance in cases of violence in the family including inter-
spousal sexual assault, with the judge having the discretion to transfer the
case to the criminal court. Conversely the court of first instance could well

32. See, State of Punjab v. Major Singh, A.LR. 1967 S.C. 65.
33. See, Raymond I. Parans, "Judicial Response to Intra-family Violence", 54
Minnesota L. Rev. 585-644 (1970). "Police Discretion and Diversion of Family
Violence Incidence", 36 Journal of Law and Contemporary Problems 539-65 (1971).
33a. Ibid.
34. Raymond I Parans, "The Relevance of Criminal Law to Inter-spousal Vio-
lence", in John M. Eeekelaar and Sanford N. Katz (ed.), Family Violence 188-192
(1978).
35. Id. at 190.
36. Ibid.
37. Michael D. Freeman, "The Phenomenon of Marital Violence and the Legal
and Social Response in England", in Family Violence, supra note 34 at 73-109.
38. Susan Maidment, "The Law's Response to Marital Violence in England and
the U.S.A.", 26 I.C. L.Q. 403-34 (1977).

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be the criminal court, with discretion vested in the judge to transfer the cases
to the family court.39 Maidment, drawing on some USA models, argues
for initial screening of family violence cases by an agency staffed by lawyers
specialised in them.40 They would offer the victimised spouse advice as to
the best way to proceed (whether by civil or criminal process or merely by
seeking help from other agencies) and they might perhaps even be given the
power to act on her behalf in much the same way as agencies bring court
proceeding son behalf of neglected or abused children, ft appears that cases
of family violence including acts of outraging modesty of wives deserve treat-
ment different from that of the traditional criminal process. However, in case
of an outrage, protection of life and limb is not in question. The family
courts should be given jurisdiction to deal with inter-spousal disputes in-
cluding instances of outraging the modesty.41 These courts seem to be best
equipped to deal with such cases as conciliation and support services would
be provided to the parties.42 This should not however, preclude the options
available at civil law.43 For those women who do not find civil remedies
adequate and wish to use criminal law, it is conceivable to use the criminal
law by the family courts in a modified way which would provide less stringent
alternatives than the traditional criminal process of arrest, trial and imprison-
ment. This approach seems to be more sound, as a husband and wife between
whom the incident of outraging the modesty has occurred would have an
opportunity to receive counselling or alternatively the wife may agree to
separate instead of prosecuting the husband in a criminal court for the deter-
mination of guilt or innocence. The latter will have little, if anything to do
with improving relationship between the spouses and may result in further
disruption of the family unit.
VI Use of criminal law
Criminal law must be improved in quality and availability so that
its protection is extended to a victim of an outrage. Criminal courts
however, are not proper avenues for the cases between husband and wife.
Family courts seem to be the only alternative to deal with cases of outrage
which are to be viewed in the broader context of acts of violence and cruelty
against wives. Indian women are terrified of criminal courts which are
already overburdened and cannot spend time in reconciliation. Prosecuting
the husband for determination of his guilt may bring loss of job to him.

39. Joanna McFadyen, "Inter-spousal Rape: The Need for Law Reform", in
Family Violence, supra note 34 at 197.
40. Supra note 29.
41. At present the Family Courts Act 1984 does not confer such jurisdiction on
family courts, see, s. 7(2) of the Act.
42. See, id., s. 9
43. Acts of outraging the modesty may amount to cruelty which is a ground for
divorce and judicial separation under the Hindu Marriage Act 1955. Cruelty is also
a ground for living separately and claiming maintenance under the Hindu Adoptions
and Maintenance Act 1956.

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1990] OUTRAGING THE MODESTY OF A WOMAN 535

In a majority of the families, the wife is economically dependent on her

husband. Prosecution and punishment will result in further economic hard-
ship to her and after the trial she may face more severe violence from her
husband.
Family courts with less formal procedure44 may help to reduce much
of the tension and misunderstanding between estranged couples even if the
wife prefers a divorce. These courts can take the assistance of medical and
welfare experts.45 While doing so, it may raise the question whether it will
be agreeable to the husband who is guilty of an outrage against his wife to
accept or undergo the treatment and efforts of an expert. In the absence
of a provision in the Act, family courts cannot order the parties or the guilty
husband in particular, to submit to the treatment provided by or diag-
nosis to be made by the expert. It is, therefore, necessary to include in the
Family Courts Act provisions requiring the husbands to submit themselves
to the treatment or diagnosis.46 Without such law the provision regarding
taking the assistance of medical and welfare experts may be dormant in
case a guilty husband refuses to cooperate with the expert.

VJI Conclusion
The law of outraging the modesty of a woman will apply where the hus-
band is guilty of an outrage against his own wife because it must be so con-
strued as to reflect the principle and value of equality in marriage. Family
courts must be conferred with the jurisdiction to try such cases instead of in-
vocation of the traditional criminal procedure. The approach suggested here
is a form of 'half-way house* between criminal remedies of trial and punish
ment on the one hand and non-intervention by law in the family on the other.
The major task before family courts will therefore be to attempt concilia-
tion between parties in cases of outrage or alternatively suggest separation
instead of leaving it to the wife to prosecute her husband for the determi-
nation of guilt. What the law is really lacking is recognition of the problem
of acts of violence like outraging the modesty in the marriage. It is to these
matters that the law, and family courts in particular, must now turn.

Surendra Chaher*

44. See, ss. 10, 14-16, Family Courts Act.

45. Id., s. 12.
46. Under the Family Courts Act of New York City, for example, the court may
order the parties to participate in psychiatric or medical treatment or appropriate coun-
selling programmes.
* B.Sc, LL. M. Ph. D. (Delhi), Lecturer in Law, M.D. University, Rohtak.

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