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Introduction:
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act also known as the POSH Act is legislation enacted with an aim to combat sexual harassment faced by women in the workplace and to provide a safe and conducive working environment by criminalizing all forms of sexual harassment including outraging the modesty of a woman.
Outraging the Modesty: Civil as well as Criminal Offense
The term "modesty" encompasses a woman's sense of decency, moral character and personal integrity. Outraging the modesty of a woman refers to any act, gesture, remark or behaviour that violates the dignity, privacy or personal space of a woman. It involves unwelcome and unwanted physical contact, passing lewd remarks, displaying explicit material, making sexual advances or any other form of harassment that undermines a woman's sense of safety, comfort or well-being. Such actions are not only a breach of personal boundaries but also an infringement of a woman's fundamental rights. The POSH Act recognizes these actions as forms of sexual harassment, which can have severe psychological, emotional and professional repercussions for the same.
Apart from POSH Act, in India, outraging the modesty of a woman is a criminal offense that is specifically addressed under the provisions of the Indian Penal Code (IPC), 1860. Section 354 of the IPC states that any person who assaults or uses criminal force on a woman, knowing that such an act is likely to outrage her modesty, shall be punished with imprisonment for a term which shall not be less than one year but may extend to five years, and shall also be liable with fine.
Test of Reasonable Man and Reasonable Woman
The words used in Section 354 of the IPC state that the act has to be done "intending to outrage or knowing it to be likely that he will thereby outrage her modesty". This intention or knowledge is the ingredient of the offense and not the woman's feelings. It is well known that the modesty in all women is of course not the same and it varies from one to another. Intention and knowledge are the state of mind which cannot be proved by direct evidence, hence the Hon'ble Supreme Court in the case of State of Punjab vs. Major Singh (1996) opined that the test of the outrage of modesty must be whether a reasonable man will think that the act of offender was intended to or was known to be likely to outrage the modesty of a woman. In considering this question, the man must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her such as her station, her lifestyle and the known notions of modesty of such a woman. The court further held that the essence of a woman's modesty is her sex.
Further, in the case of Swapna Barman vs. Subir Das (2003), the Hon'ble High Court observed that the word 'modesty' does not lead only to the contemplation of a sexual relationship of an indecent character. Section 354 of IPC includes indecency, but that does not implicate that it excludes all other acts falling short of downright indecency. Thus, it was held that the respondent from the act of entering the house compound at midnight and uttering the victim's name in the presence of her husband and coupling her name with his own intended sufficient to outrage her modesty.
Denial of Bail applications for outraging the Modesty of a Woman
Recently, on May 31, 2023, the Hon'ble Additional Session Judge, Mr. A.Z. Khan of the Mumbai Court rejected the applications filed by two men for Anticipatory Bail as they have been booked for the offense of outraging the modesty of a woman u/s 354, 354-A, 354-D and 509 read with Section 34 of the IPC1.
Facts of the Case:
A complaint was filed by an aggrieved woman on April 24, 2023, who worked in a real estate company as a Front Office Executive and alleged to have been harassed by her assistant manager and sales manager. The complainant claimed that the accused men outraged her modesty and uttered filthy language2.
Personal remarks were inflicted upon her stating:
"Madam, aapne khudko bahut maintain rakha hai.. aapka figure bahut achcha hai.. kya ma'am, mere saath bahar jaane ke baare mai kuch socha ki nahi?"
The complaint was initially made to her office authorities and simultaneously an FIR was lodged in the police station.
Considering the facts and the circumstances, the Dindoshi Sessions Court opined that the offence is serious and against a woman wherein the accused persons alleged to have outraged the modesty and used such filthy language towards the complainant at the workplace and tried to pressurize the complainant and the employers. The court urged the need for having a custodial interrogation and thereby, dismissed the anticipatory bail plea filed by the accused men.
Footnotes
2. https://www.opindia.com/2023/06/mumbai-court-sexual-harassment-complimenting-female-figure/
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