What is the concept of property? What is the distinction between movable and immovable property? Discuss and explain with the help of suitable case law or illustrations.

Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day. Let’s discuss the concept of property.

What is the concept of property? What is the distinction between movable and immovable property? Discuss and explain with the help of suitable case law or illustrations.

Concept of Property:

Property is an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership. The things may be tangible, such as land or goods, or intangible, such as stocks and bonds, a patent, or a copyright. Because property law deals with the allocation, use, and transfer of wealth and objects of wealth, it must reflect the economy, family structure, and politics of the society in which it is found.

Property is defined under Clause (36) of Section 3 of the General Clauses Act, 1897 and clause (9) of Section 2 of the Registration Act, 1908 as well as Section 3 of the Transfer of Property Act, 1882. Indian legislation classifies the term ‘property’ under various categories like tangible and intangible, real and personal, corporeal and incorporeal, and movable and immovable property.

Various Statutory definitions of term property:

The General Clauses Act, 1897

Section 3 (26): “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

The Benami Transactions (Prohibition) Act, 1988

Section 2(c) “property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

The Sales and Goods Act, 1930

Section 2 (11) “property” means the general property in goods, and not merely a special property.

The Transfer of Property Act, 1882

Section 3 “immoveable property” does not include standing timber, growing crops or grass.

The Registration Act, 1908

Section 2(6) “Immovable Property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass; and

Section 2 (9) “Movable Property” includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.

Movable and immovable property:

In Indian legal systems the types of property considered mainly are

a) Movable Property: Anything that is not affixed to the land can fall under the category of movable property, irrespective of its shape, size, quality, or quantity, e.g. Vehicles, electronic devices, jewellery, books, timber, growing crops and grass etc.

b) Immovable property: As the nomenclature suggests, immovable property definition states that it is any property with rights of ownership attached to land and that cannot be moved, e.g. agricultural land, villa, flat, mines, water bodies, etc.

Difference between movable and immovable property:

Movable Property	Immovable Property
The movable property can easily be transported from one place to another, without changing its shape, capacity, quantity or quality.	Immovable property cannot be transported from one place to another.
Movable property refers to movable assets (such as your computer, jewellery, vehicles, etc.).	Immovable property commonly refers to real estate (such as your house, factory, manufacturing plant, etc.)
Movable property is one, which can be transferred from one place to another place with the human efforts.	Immovable property includes land, benefits arising out of land and things attached to the earth or permanently fastened or anything attached to the earth.
It includes stocks and shares, growing crops, grass, and things attached to or forming part of the land, and which are agreed to be severed before sale, or under the contract of sale	It includes land, benefits to arise out of land, and things attached to the earth
If the thing is resting on the land merely on its own weight, the presumption is that it is movable property, unless contrary is proved.	If the thing is fixed to the land even slightly of it is caused to go deeper in the earth by external agency, then it is deemed to be immovable property.
If the purpose was only to enjoy the thing itself, then it is movable property even though it is fixed in the land.	If the propose of annexation of a thing is to confer a permanent benefit to the land to which it is attached, then it is immovable property.
Examples Right of worship; royalty; a decree of sale of immovable property; a decree for arrears of rent; Government promissory notes; standing timber, growing corps and grass.	Benefits to arise out of land such as hereditary allowances, right of way, ferries and fisheries, right to collect rent and profits of immovable property; a mortgage-debt; right to cut grass of one year, a factory; etc.
No registration is required to transfer a movable property.	Transfer of immovable property requires registration of the document.

 

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List of references:

1) Property Legal Concept

2) Brush Up Your Basic Knowledge About Movable and Immovable Property

3) Difference between Movable and Immovable Property

Salient features of Dowry Prohibition Act, 1961

The practice of dowry has to be examined in the broader context of the devalued status of women. Parents are often compelled to pay dowry to ensure the security and happiness of their daughter in her matrimonial home.

Dowry Prohibition Act, Indian law, enacted on May 1, 1961, intended to prevent the giving or receiving of a dowry.

Amendments to the original Dowry Prohibition Act also established minimum and maximum punishments for giving and receiving dowry and created a penalty for demanding dowry or advertising offers of money or property in connection with a marriage. The Indian Penal Code was also modified in 1983 to establish specific crimes of dowry-related cruelty, dowry death, and abetment of suicide. These enactments punished violence against women by their husbands or their relatives when proof of dowry demands or dowry harassment could be shown.

The definition of dowry in the Dowry Prohibition Act, 1961 is given in Section 2 as follows:

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Dowry does not include dower or mahr in the case of Shariyat laws.

The definition of the dowry includes the demand for any property before marriage, at the time of marriage, or even after the marriage from one party of marriage to the other party. Such demand should be in connection with the marriage. This demand shall be fulfilled by the party of the marriage, or parents of the party of the marriage, or any other related person of the party of the marriage.

If the husband demanded an amount of Rs 50,000 by way of dowry some days after the marriage from the wife’s father and in the event of her not being able to give that amount was subjected to torture, it would mean that the amount was demanded in connection with the marriage and it was a demand of dowry even though it was demanded after marriage.

The Dowry Prohibition Act 1961 does not bar the traditional giving of presents at or about the time of a wedding. Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute. But it is provided that such gifts must not be demanded, they must be given voluntarily.

The Act provides for the penalty for taking dowry and abetting to take dowry. Such a person may get a punishment of imprisonment not less than five years and he has to pay a fine of at least 15,000 or value equal to such dowry demanded, whichever the more. Such punishment is provided in Section 3 of the Act.

The Act also makes agreements of giving and taking dowry void by Section 5.

Section 6 of the Act provides for the transfer of the property received in the name of dowry to the woman within three months from the date of its receipt. Such transfer in the name of the woman will be beneficial to her and her children. If the receiver of the dowry fails to transfer such property to the concerned woman then an amount equal to the value of the property may be recovered from him.

Every offence under the Act is non-bailable and non-compoundable.

The Act empowers the State Government to appoint the Dowry Prohibition Officer and to make rules for carrying purpose of the Act. Also, Central Government is empowered to make rules for the implementation of the Act.

 

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References:

1) The National Commission for Women Recommendations and suggestions on Amendments to the DOWRY PROHIBITION ACT, 1961

2) Dowry Prohibition Act

3) Dowry Prohibition Act, 1961

Bigamy in India:

Meaning:

Marriage has been defined as a pure sacrament, particularly in our Indian culture a bond that joins two lives together till the end of their lives, unlike in other countries where entering into a marriage is a contract.

If a certain person in a marital bond cheats with the other person and enters into a new bond of marriage during the lifetime of the other partner, doing this is also known as committing the offence of Bigamy, the sole reason being it is immoral on the part of the first partner to start a new life at the expense of happiness and peace of the previous partner in marriage.

The second marriage while the first marriage is in subsistence is called Bigamy. Bigamy, in simple words, means a person marries for the second time while his first marriage is in subsistence.

The bigamy law is applicable to Hindus, Jains, Buddhists, Sikhs, Parsis, and Christians [except Muslims].

Position in society:

In a case, where the husband or the wife is alive then, the second marriage contracted by a person is not legal and does not hold any validity in the eyes of law, i.e. it is termed to be a void marriage. The position of bigamy in India is certainly mentioned in the law but the practice is still very common and hence the contrast between the law and social practice results in the second wives not having enough protection.

Women in the second marriage are cheated on and are not provided with much protection under Indian laws. There is no legal recognition given to second wives. Nevertheless, the victims of bigamy can still approach the Courts for claiming maintenance. The second wife is entitled to maintenance, she is not entitled to property rights.

Legal provisions;

The key law forestalling Bigamy in India is the Indian Penal Code yet in the event that personal laws do not explicitly specify Punishment for Bigamy or illegalize Bigamy, at that point any person can’t be indicted for the offense of bigamy. Bigamy is prohibited in India under Section 494 of the Indian Penal Code. The law expresses that, whoever marries another person in the lifetime of the existing spouse, such marriage by reason of its occurring during the lifetime of such husband or wife, should be viewed as void and should be punished for such offense. If any person marries more than once during the life of his first spouse, he/she should be punished with imprisonment which may extend to seven years, and shall also be liable to a fine.

Section 494 of the IPC provides about “Bigamy” as thus “Whoever, having a husband or wife living, marries again in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Bigamy in India is a non-cognizable offence. It is bailable and compoundable when the permission of the Court is granted if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, of a maximum of 7 years or a fine or in some cases, both. In case the person charged with bigamy has performed the second marriage by concealing the fact of the first marriage, then he shall be punished with imprisonment of up to 10 years or a fine or both. Such offence under section 495 is not compoundable.

Hindu Marriage Act, 1955- As per the Section 17 of the Hindu Marriage Act, 1955, if a person considered to be a Hindu under the Act, marries another person in the existence of his/her first marriage, i.e, while the first husband or wife is alive, then that person shall be punished under the Indian Penal Code. Section 16 of the Hindu Marriage Act 1955 states that the children born from a bigamous relationship shall be held perfectly valid. But there is no legal recognition for the second wife, but she may have a chance of maintenance under the Act.

Muslim Women (Protection of Rights on Divorce) Act, 1986- Under this Act, unlike other religions, there are no particular or specific provisions for bigamy. A Muslim man has a right to marry twice, thrice, or four times if he is able to treat and respect all of his wives in an equal manner. In case he fails to do so, then he is liable.

Parsi Marriage and Divorce Act, 1936- Section 5 of this act affirmed Bigamy null and void or dissolved and imposes a penalty which has been laid down under Section 494 and 495 of Indian Penal Code, 1860.

Christian Divorce Act, 1896- This act does not provide a specific law for bigamy but at the time of registration of marriage, Section 60 lays down that none of the parties to the marriage should have been in an existing marriage and if a person gives a fall oath or declaration, then he/ she is punishable under Section 193 of the Indian Penal Code. This provision explains that under this Act, more than one marriage is considered to be illegal.

Special Marriage Act, 1954- Section 44 of this Act lays down that if any person commits bigamy then he/ she is liable under Section 494 and 495 of the IPC, 1860.

Foreign Marriage Act 1969- Section 19 of this act states the punishment for Bigamy and imposes a penalty under Sections 494 and 495 of the Indian Penal Code.

Sarla Mudgal v. Union of India (1995 AIR 1531 SC): The Supreme Court of India in its landmark judgment held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife ), the marriage shall be regarded as void and illegal and he shall be punished in the similar manner as he would have been punished had he not converted his religion.”

Bigamy shall not apply if:

a) the first husband or wife is dead, or

b) the first marriage has been declared void by the Court of competent jurisdiction, or

c) the first marriage has been dissolved by divorce, or

d) the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

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References:

1) Rights of the second wife in India

2) Is Bigamy a Punishable Offence in India?

3) BIGAMY LAWS FAQ

Salient features of conventions for elimination of all forms of discrimination against women:

 

Article 1 of the CEDAW defines discrimination against women as follows:

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), human rights treaty adopted by the General Assembly of the United Nations in 1979 that defines discrimination against women and commits signatory countries to take steps toward ending it.

The convention, which is also known as the International Bill of Rights for Women, consists of 30 articles and includes an optional protocol (OP). Human rights agreements often include OPs to provide an alternative mechanism to hold governments accountable or to further elaborate on any substantive topic within the treaty itself.

The rights listed in the Convention for Elimination of all forms of Discrimination Against Women (CEDAW) cover many aspects of women’s lives and relate to political participation, health, education, employment, housing, marriage, family relations, and equality before the law.

Under CEDAW, governments are also responsible for ensuring that individual citizens and private organisations do not discriminate against women.

The CEDAW requires both substantive and formal equality, non-discrimination, and empowerment of women, therefore recognizes that formal equality alone is insufficient for a state to meet its obligation and requires measures to address both direct and indirect discrimination to achieve substantive equality between men and women.

CEDAW provides for the right to education of females, protect the reproductive right, sex trafficking and exploitation; political and civil rights, such as the right to vote; health, employment, and marriage; and specific issues affecting rural women, such as access to agricultural credit and loans.

The Committee on the Elimination of Discrimination against Women (CEDAW Committee) is the international body charged with monitoring the implementation of the legal obligations of the 189 States parties under the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW).

The CEDAW Committee monitors the progress made by the countries, which have ratified or acceded to the convention, in implementing CEDAW.

The CEDAW Committee is made up of 23 independent elected members (elected by countries who have signed CEDAW) who serve in their personal capacity as ‘gender experts.’

The CEDAW Committee meets three times a year to address specific topics related to CEDAW and to monitor and report on the progress of individual countries that have signed CEDAW.

Countries that have signed CEDAW are required to submit reports to the CEDAW Committee at least every four years.

Thus it can be concluded that CEDAW is the convention that enables feminist jurisprudence in the 189 countries that signed the convention. There is a CEDAW committee that monitors the implementation of measures taken to enforce the CEDAW provisions. This convention not only provides for the discrimination of women but also heinous crimes against women, such as trafficking, sexual violence, etc.

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References:

1) Committee on the Elimination of Discrimination against Women (CEDAW)

2) Convention on the Elimination of All Forms of Discrimination Against Women

3) The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW): Sex Discrimination - International Activities

Status of Women in Pre-Constitutional Period

 

Pre-constitutional period means period before the enactment of the Constitution of India i.e. 26^th January, 1950 across India. It includes the British Rule era and period between 15^th August, 1947 and 26^th January, 1950.

During British rule the position of wife in household was at sorry level. The women were dominated in domestic sphere. Literacy rate was also very low, hardly 1 out-off  100 women was able to read and write. Evil social practices, dogmatic religious beliefs, inhuman superstitions and sinister customs caused the maximum degree of deterioration. Child marriage, enforced widowhood, sati, Devadasi, purdah, burkha, dowry, female infanticide and the practice of polygamy made the Indian society static. One sect of the society was having easy provisions of divorce but in the majority the provision for divorce was not present.

During the communal tensions between the religious groups, only the women were victims of sexual violence. During such riots, specifically in Madras precidency, if a pregnant woman was caught then the rioters use to cut her belly and let her to die. Age old women were killed by these rioters. Female children, young girls and other adult women were raped heinously. Also in some parts during such riots, specifically during partition, in the area of Punjab and Bengal, the women were disrobed and forced to walk in front of rioters and then they were gang-raped brutally. British rulers were not able to handle such communal riots and such incidences took place many times even after 1900.

The majority religious group was practicing some things such as child marriages, enforced widowhood, sati, Devadasi, purdah, etc. But the social reformers such as Raja Ram Mohan Ray, Iswar Chandra Vidyasagar, Savitri Bai Phule, Mahatma Jyotiba Phule and others protested for the abolition of such practices and they stressed for the women education and widow remarriages. Their efforts were accepted by the majority religious groups.

The majority religious group accepted the reforms Sati’ was legally abolished in December, 1829. After the abolition of ‘Sati’ the Britisher’s realized the pitiable conditions of the Hindu widows and enacted the Hindu Widow Remarriage Act in 1856. The Hindu Woman’s Right to Property Act was passed in the year 1937. It intended to improve the position of widows in respect of property. The Child Marriage Restraint Act was passed in 1929. This Act penalized the marriage of girls below fourteen and boys below eighteen years of age. They accepted the reforms and many inhumane practices were abolished and many Acts in favour of Hindu women were passed. Also for these reforms Hindus supported to the protests and then government was forced to pass the enactments.

Some religious groups were against such reforms and from such groups practices like polygamy were not reformed, because no one was there to protest against such practices. And still there are some sects in the society where polygamy, dowry, no education rights, child marriage, etc. are practiced which are heinous.

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Explain the provisions relating to women in Directive Principles of State Policy under the Indian Constitution.

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education, and political disadvantages faced by them. The Constitution of India prohibits discrimination based on sex but it equally directs and empowers the government to undertake special measures for women. The Constitution provides many protection rights for women such as Protective discrimination in favor of women, the Right to freedom of women, the Right of women against exploitation, the Rights of women under directives, and political representations of women.

This policy envisaged equal rights to work, equal pay for equal work, and adequate means of decent and dignified livelihood for both men and women, these are guaranteed under the directive principles of State policy. Part IV of the Constitution containing Articles 38, 39 (a) (d) and (e), 42, 44, and 45 deals with the welfare and development of women.

A. Equal justice and free legal aid

In the Indian Constitution, there are provisions to get Equal justice and free legal aid to the needy. Such provisions are given in Article 38 of the Constitution of India, which reads as follows:

Article 38. State to secure a social order for the promotion of welfare of the people -

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Legal Aid means giving free legal services to the poor and needy who are unable to afford the services of an advocate for the conduct of a case or a legal proceeding in any court, tribunal, or before any judicial authority.

In the case of Hussainara khatoon vs. State of Bihar, it was held that if an accused is not able to afford legal services then he has a right to free legal aid at the cost of the state.

B. Principle of “equal pay for equal work” is a constitutional goal.

This principle is provided in Clauses (a) and (d) of Article 39 of the Constitution of India, which read as follows:

Article 39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(d) that there is equal pay for equal work for both men and women;

India still lacks a comprehensive and transparent wage policy for all the sectors of the economy. Gender equality is the goal, while gender neutrality and gender equity are practices and ways of thinking that help in achieving the goal. Gender parity, which is used to measure gender balance in a given situation, can aid in achieving gender equality but is not the goal in and of itself.

In Clause (a) of Article 39, all citizens, regardless of gender, have equal rights and a decent livelihood.

Article 39(d) ensures that there is equal pay for equal work for both men and women. The Parliament has enacted the Equal Remuneration Act, 1976 and implemented Article 39. The doctrine of ‘equal pay for equal work’ is equally applicable to both men and women, even the daily wagers are also entitled to the same wages as other permanent employees in the department employed to do the identical work.

The Apex court in Randhir Singh v. Union of India has expressed the opinion that the principle of “equal work” is not declared in the Constitution to be a fundamental right but it is certainly a constitutional goal.

C. Men and women workers to be protected equally

This principle is provided in Clauses (a) and (e) of Article 39 of the Constitution of India, which read as follows:

Article 39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

In Clause (a) of Article 39, all citizens, regardless of gender, have equal rights and a decent livelihood.

According to Article 39(e) of the Constitution, the state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength and that of the children of underage to be protected equally. They should not be forced to work under inhuman and hazardous conditions.

In M.C Mehta v. State of Tamil Nadu, it has been held that in view of Article 39 the employment of children within the match in view of Article 39 the employment of children within the matches factories directly connected with the manufacturing process of matches and fireworks cannot be allowed as it is hazardous. Children can, however, be employed in the process of packing, etc. away from the place of manufacturing.

D. Provisions for maternity benefits:

Article 42 of the Constitution of India gives the provisions for the safety of women in work conditions and maternity relief. The said article reads as follows:

42. Provision for just and humane conditions of work and maternity relief –

The State shall make provision for securing just and humane conditions of work and for maternity relief.

E. Uniform Civil Code and Gender Equality

Article 44 of the Constitution of India gives the provisions for Uniform Civil Code in India. In order to establish true equality among the citizens of the country, the State must enforce the Uniform Civil Code. Gender justice means social, political, and economic equality for women. The Article reads as follows:

44. Uniform civil code for the citizens –

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

It suggests the abolition of the patriarchal system that has been infused with the system. Gender justice is indispensable for ‘development’ in a true sense. The implementation of a uniform civil code and the issue of gender justice, two are closely connected to each other in the Indian socio-legal perspective. Women empowerment in core areas like social status, gender bias, health, security, and empowerment are of urgent necessity. There is no Uniform Civil Code in India but a Uniform Criminal Code exists. Criminal law is equally applicable to all citizens irrespective of their religious affiliation. However, in the case of civil law particularly in the matter of personal laws, there is no uniformity. World history is evidence of the fact that one of the most neglected ideas has been that of women’s rights. Around half of the world’s population has been denied equality in almost every sphere of life. This statement is a testimony to the fact that equality without gender justice is no equality at all.

In a landmark judgment in Sarla Mudgal versus U.O.I: The Supreme Court has passed directions to the Central Government to review Art. 44 of the Constitution which permits the state to guarantee a uniform civil code (U.C.C). According to the court, it is imperative and essential for the protection of the oppressed and for the promotion of public solidarity and integrity.

F. Free Education for female children:

The right to education is a fundamental right and Article 45 provides the directive principle to impart free education to all children of India irrespective of their gender, caste, creed, religion, etc. until they complete the age of fourteen years. The Article reads as follows:

Article 45 Provision for free and compulsory education for children –

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

As per Article 45, all children are to be given free education irrespective of their gender.

Thus Directive Principles of State Policies through Articles 38, 39 (a), (d) and (e), 42, 44, and 45 provide for the feminist jurisprudence.

References:

1) DIRECTIVE PRINCIPLES OF STATE POLICY AND WOMEN IN INDIA

2) Women Rights under the Constitution of India

3) PART IV DIRECTIVE PRINCIPLES OF STATE POLICY

What do you understand by outraging the modesty of a woman?

Outraging the modesty of a woman:

Section 354 of the Indian Penal Code provides definition and punishment for the outraging the modesty of a woman. The said section reads as follows:

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 shall not be less than one year but which may extend to five years, and shall also be liable to fine.

Outraging the modesty of a woman is an offence provided there is use of assault or criminal force with the intention for the purpose or knowing it likely that he will thereby outrage her modesty. The offence under this section is different from rape and is of less seriousness than the one under Section 376.

It has been made a non-bailable offence under the Criminal Law Amendment Act, 2013.

Ingredients

The section has two main ingredients:

(i) Assault or use of criminal force to a woman. The act on his behalf must be an outcome of the criminal force or an assault used by him.

(ii) Intention of the actor or his knowledge that he would thereby commit this offence. From the side of an accused, section 354 requires basic knowledge on his part that his act is likely to cause harm to a woman's modesty.

Outraging the modesty

In ordinary language "modest" means freedom from conceit or vanity or propriety in dress, speech and conduct. Modesty means sexual dignity of a woman which is acquired by her since the time of her birth. Modesty is defined as something lewd or scrupulously chaste as per the Oxford dictionary. The Supreme Court defined, the essence of a woman’s modesty is her sex.

The word "outrage" has affinity with extremely rude, violent, injurious or insulting act on one hand and it is connected with guilt, culpability, criminality and deviation from rectitude on the part of the person committing assault or using criminal force on a woman. The word ‘outrage’ implies a physical act.

The concept of modesty is subjective to every woman i.e. the sexual limits are personal to every woman; there cannot be a set formula to judge the boundaries of the sexual honour of a woman.  For example, a simple touch on the shoulder might be unacceptable to a woman who lives in a rural area but for a woman in an urban area it could be a casual gesture to greet people. However, there are certain acts which are bound to violate the modesty of every woman and these are the concerns of law, e.g. touching on her posterior sexual organs etc.

Herein, the modesty of a woman is violated by touching her without her consent at such parts of her body which are unacceptable to her. The reaction of the woman is not very relevant in judging as to whether an assault to her amount to outraging her modesty as this offence differs from woman to woman. The ultimate test for ascertaining whether modesty has been outraged is whether the act by the accused is capable of shocking the sense of decency of the woman.

Examples- include demand for disrobing her, defamatory remarks, forcefully dragging her to commit sexual assault and not limited to voyeurism are acts that would come under the ambit of outraging the modesty of a female.

Insulting Modesty

The word ‘insult’ refers to a situation where a woman is made to feel ashamed of her sexual dignity i.e. lowering the sexual honour of a woman in her own eyes. It may be done by passing sexual obscene remarks or making such gestures, sounds or showing sexual objects to her.

The modesty of a woman is insulted without actually touching her but by uttering any word, making any sound or gesture or exhibiting any object which has a sexual connotation with the intention that it be heard, seen or intrudes upon the privacy of such woman. If a person with an object to insulting the modesty of a woman exposes private parts of his body to her or uses obscene words or exhibits obscene drawings he shall be liable for the offence of insulting the modesty of a woman. However, the offender himself doesn’t need to personally exhibit the object; he may employ an agent for the same.

 

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References:

1) Outraging modesty of a woman [S. 354]

2) Sexual Offences in IPC: Outraging Modesty, Disrobing, Voyeurism, and Stalking

3) Case study on outraging modesty of women