Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Outraging the Modesty of a Woman (S. 74 BNS)
Section 74 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offense of outraging the modesty of a woman, a serious crime aimed at protecting the dignity and bodily autonomy of women. This provision criminalizes any act of assault or use of criminal force against a woman with the intent to outrage, or knowing it to be likely that such action will outrage, her modesty. Over time, the interpretation of “modesty” has evolved through judicial decisions, making this section a crucial tool in addressing gender-based violence and harassment in India. The law recognizes that modesty is an inherent attribute associated with womanhood, and any unwelcome physical contact, advances, or actions that violate a woman’s sense of decency fall within its ambit. Section 74 BNS thus plays a vital role in safeguarding women from acts that may not amount to more severe offenses like rape but still deeply infringe upon their dignity and personal security.
Section 79 BNS provided an elaborative, yet, comprehensive definition of the offence leading to a co-joint reading of the two sections in almost all of the cases. It is pertinent to note that the term ‘modesty’ lacks an appropriate definition itself and hence has not been described anywhere explicitly in the entire Sanhita. Thus, the Supreme Court finally defined the meaning of the term modesty as the “essence of a woman’s modesty is her sex itself”.
Outraging the Modesty of a Woman:
Section 79 BNS:
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 there by 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.
Essential Ingredients of Section 74 BNS:
In Raju Pandurang Mahale v. State of Maharashtra, Criminal Appeal 616 of 2003 case, the Supreme Court gave the essential ingredients of offence under Section 354 IPC:
- That the accused assaulted on a woman;
- The accused had used criminal force on her; and
- That the criminal force used by the accused on the woman with intention to outrage her modesty.
Thus, for convicting a person under Section 74 BNS, the prosecution has to prove beyond reasonable doubt that
- An assault has been committed, or criminal force has been used,
- The object of assault or criminal force is a woman,
- That it was with the intention to outrage the modesty of a woman or with the knowledge that it was likely that her modesty would be outraged.
In Vishaka v. State of Rajasthan, AIR 1997 SC 3011 case, the Supreme Court said that the issue of offence relating to modesty of woman cannot be treated as trivial or a petty offence.
Punishment:
Punishment for outraging modesty of a woman is 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.
Classification of Offence:
Offence under this Section is cognizable, non-bailable, non-compoundable and triable by a magistrate of any class.
Who is Offender?
The section describes the word “Whoever” as a gender-neutral term. This section is not gender-specific, and the offender can be both male and female. In other words, the facts and circumstances have to be considered to conclude whether the act has outrage of modesty or not.
Woman:
Section 2(35) BNS gives a clear definition of a woman – A female human being of any age. So irrespective of age the woman’s modesty can be concluded as outraged if the acts fall within the arena of interpretation of the honourable apex court.
In State of Punjab v. Major Singh AIR 1967 SC 63 case, where there was an incident of an assault on a girl child of seven and half months. The accused was prosecuted under Section 354 IPC (S. 74 BNS), Assault or criminal force to woman with intent to outrage her modesty. The Supreme Court held 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. The culpable intention of the accused is the crux of the matter. The reaction of a woman is very relevant but is not always decisive. This victim had not developed a sense of shame and had no awareness of sex. Nevertheless, even a female of tender age from her very birth possesses the modesty which is the attribute of her sex. Hence the accused was held guilty and was convicted under Section 354 of the Indian Penal Code (S. 74 BNS).
Assault or Criminal Force:
The Section 128 BNS provides the definition of force which states that if the motion is caused, or there is any change of motion or cessation of the motion which could affect the sense of other person’s feeling it becomes the force when cumulatively understood in three other ways as described.
According to Section 129 BNS, a force becomes criminal when there is an intentional use of force or if there is any knowledge of the same.
According to Section 130 BNS, whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
In Bihari Lal v. Lalita Prasad, (1934) Lah 786, 789 case, the Lahore High Court held that a force is the contemplation of the presence of both the persons at once which means the presence of the person who has used it and the presence of the other person towards whom it is being used or directed.
Outraging the modesty:
In ordinary language “modest” means freedom from conceit or vanity or propriety in dress, speech and conduct. 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.
For example: slapping a woman on her butt, disrobing her, asking her for sexual favour etc
In Major Singh Lachhman Singh v. The State, AIR 1963 P H 443 case, the Punjab and Haryana High Court held that the modesty of a woman is outraged when the act of the offender harms feminine decency and dignity. Any act which is offensive to the sense of modesty, decency and repugnant to womanly results in outrage to the modesty of a woman.
In Ramkripal Singh v. State of Madhya Pradesh, AIR 2007 SC 370 case, the clear definition and description of the word modesty was given by the Supreme Court: “The Section 509 on the other hand makes the intention to insult the modesty of the woman as an essential and the most important ingredient of the offence as it has been mentioned that whoever intends to insult the modesty of any woman, utter any word, makes any sound, or gesture or exhibits any object intending that such word or sound will be heard or intrudes the privacy of the woman shall be punishable according to the prescribed term.”
In Aman Kumar v State of Haryana, AIR 2004 SC 1497 case, the Supreme Court described modesty as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. The above understanding of the term ‘modesty’ suggests that it has wider connotations attached to it.
In Swapna Barman v. Subir Das, AIR 2004 GLR 168 case, the Gauhati High Court held that under this particular provision of Section 509 IPC (S. 79 BNS) the term ‘modesty’ does not only lead to the contemplation of sexual relationship of an indecent character but also includes indecency.
In Shekara v. the State of Karnataka, 2009 (14) SCC 76 case, the apex court held that in order to constitute the offence under Section 354 IPC (S. 74 BNS) mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases.
In Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732case, the Supreme Court held that acts like hugging wife by a husband in public will not outrage the modesty of a woman as such acts are not considered indecent by the society. However, such acts that go against public morality that are committed in public and not consented by the wife also become a ground for offence under section 354 IPC (S. 74 BNS).
In Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235 case, the Supreme Court held that Right to make choices with respect to sexual activity was associated to Right to liberty, Right to bodily integrity and Right to Privacy, which are guaranteed under Article 21. Married women should not be exempted from this bracket of protection by the virtue of their marriage, especially when a fair share of marriages are forced.
Distinguishing Outraging Modesty and Attempt to Rape:
It is essential to consider that any act which falls short of rape needs to be attributed as outraging modesty of the woman. Even, the offence of outraging modesty of women is entirely different from attempt to commit rape. However, it is a fact that it is a thin line difference. This sort of difference is actually invisible.
There is no separate provision in BNS which defines and prescribes punishment for attempt to rape and it is, therefore, punishable under S. 64 BNS read with S. 62 BNS. S. 64 BNS punishes rape while S. 62 BNS is a residuary provision which penalises attempts to commit offences for which no specific punishment has been provided otherwise. Attempt to rape is, therefore, not defined in BNS. ‘Attempt to rape’ involves cases where the offender attempts to rape a woman, and ‘criminal assault’ cases include cases involving acts like pulling a woman, removing her dress, slapping a woman etc. It thus makes sense to conclude that every attempt to rape or even rape for that matter can be punished under S. 74 BNS because such acts definitely outrage the modesty of a woman. Thus the offence of attempt to rape is a subset of offence of criminal assault.
In Aman Kumar v State of Haryana, (2004) 4 SCC 379 case, the accused teased the prosecutrix and had done all the preparation to commit rape upon prosecutrix, yet the court found accused not guilty of attempt to rape. A ‘test’ to establish ‘attempt to rape’ was laid down when the court said that in order to convict a person for attempting to rape, the court must be satisfied that when the accused laid hold of the prosecutrix, not only did he desire to gratify his passions upon her but also he ‘intended to do so at all events, and not withstanding any resistance on her part.’
In State of Rajasthan v. Sri Chand, 2015 AIR SCW 3293 case, where accused lured a 12-years-old girl to his house, locked the room’s door, forcibly undressed her and made her lie on the ground. He stopped only when others arrived at the spot after hearing the girl crying. The Supreme Court applied the test laid down by the apex court in Aman Kumar case and held that the fact that the accused fled away when he heard others coming shows that he wasn’t determined to indulge into sexual intercourse with the prosecutrix at all events despite of all resistance and odds. The court therefore found the accused to be innocent as far as the offence of attempt to rape is concerned and held him guilty of offence under section 354 IPC (S. 74 BNS).
In State v. Musa, 1991, CriLJ 2168 case, where the victim who was a married woman, alleged that two men dragged her and raped her. Traces of semen were found on her clothes which were produced as medical evidence. However, no traces were found on the clothes of the accused. Thus, the court opined that it was not a case of rape due to lack of evidence but convicted the accused for the offence under Section 354 IPC (S. 74 BNS) as they had dragged the victim with the intention of outraging her modesty.
In Sadananda Borgohain v. The State of Assam, 1972 CriLJ 658 case, the Court said that it is a well-settled principle that if the woman is a consenting party to the act, there cannot be any outraging of modesty.
In Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560 case, the Court said that since penetration is sine qua non of the offence of rape, and in this case no attempt to penetrate was made, the accused therefore could not be held guilty of attempt to rape.
In Chaitu Lal v. State of Uttarakhand, AIR 2020 SC 219 case, where the accused entered the prosecutrix’s home in a drunken state, pounced and sat upon her, lifted her petticoat while she protested against his advancements and wept. He stopped only when other villagers intervened. The court while convicting the accused of attempt to rape said that the accused wouldn’t have stopped if the villagers hadn’t intervened and this conduct is indicative of his definite intention to commit the offence.
In T Manikadan v. The State (Govt of NCT of Delhi) on 10 January, 2017 case, the Delhi High Court held that there is no illegality in convicting the accused under the Sec 354 IPC (S. 74 BNS), 354 A IPC (S. 75 BNS) simultaneously.
Conclusion:
“Outraging the modesty of a woman” is a legal term that generally refers to any action or behavior that violates a woman’s modesty or dignity. This could include various forms of harassment, molestation, assault, or any other behaviour that is considered indecent or disrespectful towards a woman’s personhood. It’s important to note that the definition of what constitutes “outraging the modesty of a woman” may evolve over time and differ between cultures and legal systems. The offence of outraging the modesty of a woman is a severe offence in India and is punishable by means of both imprisonment and a fine. It is important for individuals to be aware of their rights and for society to take a zero-tolerance approach toward sexual offences.
Section 74 of the Bharatiya Nyaya Sanhita, 2023 serves as a vital safeguard in preserving the dignity, autonomy, and personal security of women. By criminalizing acts that outrage a woman’s modesty, the law acknowledges the seriousness of conduct that, while sometimes falling short of more grievous offenses, still constitutes a profound violation of individual respect and bodily integrity.
Judicial interpretations have played a key role in expanding and clarifying the scope of this provision, ensuring that it remains responsive to evolving societal norms and the realities faced by women. However, the effectiveness of this section ultimately depends not only on legal enforcement but also on societal awareness, sensitivity, and a collective commitment to gender equality.
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