Conflicting Judicial Views Across Indian Courts
- Chhattisgarh High Court: Consent Is Central
- Kerala and Madras High Courts: The Question of Criminal Intent
- Bombay High Court and POCSO: When Minors Are Involved
- Absence of a Supreme Court Ruling
- Outraging Modesty Under the Bharatiya Nyaya Sanhita
- Consent, Dignity, and India’s Social Context
- Why Lack of Consent Itself Constitutes the Offence
Indian courts differ on whether pulling a woman’s hand without consent amounts to outraging modesty. Justice Markandey Katju examines conflicting rulings and explains why lack of consent itself makes it a crime under Indian law.
Is pulling the hands of a woman/girl without her consent a crime?
By Justice Markandey Katju
There seems to be a difference of opinion between different Courts in India on the question whether pulling by a man of a girl's/woman's hands without her consent amounts to the crime of outraging her modesty, punishable under law under section 74/79 of the Bhartiya Nyaya Samhita.
The Chhattisgarh High Court in a recent verdict, held that it is a crime
But a Kerala magistrate's court took a contrary view, holding it is not an offence unless there was lustful intention
The Madras High Court held that it will not be a crime, unless there was a criminal intent
A similar view was taken by the Bombay High Court
But a special POSCO of Mumbai has held it to be a crime when committed on a minor
Another court has taken a similar view
But the Meghalaya High Court has said that holding a minor girl's hands is not an offence
In Sheikh Rafique Sk. Gulab v. State of Maharashtra, the Bombay High Court held that even the act of holding a minor girl’s hand, when coupled with an offer involving sexual gratification, amounts to sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The offence
There does not seem to be any direct Supreme Court decision on the point. So I am expressing my own view.
In my opinion, while saying something like ''I love you'' to a girl/woman may not be a criminal offence, but touching any part of her body without her consent certainly outrages her modesty, and is therefore a crime.
We must remember that India is not like Western countries. Indian society is still broadly conservative, and this social context must be kept under consideration by Indian law courts while deciding cases.
Indian women have reputations, which they would like to maintain. In particular, they would not like their bodies touched by a man without their consent. To say that pulling a woman's hands without her consent is not a crime unless there is lustful/criminal intention is, in my opinion, an erroneous view. Why should a man pull a woman's hands without her consent, unless he has lustful/criminal intent ?
So my own view is that while saying something improper to a girl/woman may not be a crime, but pulling her hands without her consent certainly is a crime under section 74 read with section 79 of the Bhartiya Nyaya Samhita, and it is immaterial whether, in addition to that, he utters words like '' I love you '' or not.
Section 74 of the BNS states :
'' 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 ''.
Section 75 of the BNS deals with sexual harassment. It states :
'' (1) A man committing any of the following acts
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
It can be argued that a man may pull a woman's hand to prevent her suffering an injury or death, e.g. by touching a naked electric wire. But these would be rare cases. Ordinarily, when a man pulls the hand of a woman/girl without her consent, it is with a lascivious or prurient intent.
(Justice Markandey Katju is a former Judge of the Supreme Court of India, and former Chairman, of the Press Council of India. The views expressed are his own.)
