The Kerala High Court recently noted that referring to a woman as a 'prostitute' may not qualify as an offense of insulting a woman's modesty under Section 509 of the Indian Penal Code (IPC) if the remark was not made in her presence.

The Court addressed a case involving three men from a residential complex who were accused of labeling a fellow residents' association member as a 'prostitute' while speaking to other residents and nearby shop owners, but not in her presence.

The bench of Justice A. Badharudeen clarified that although such behavior might constitute an offense under different legal provisions, Section 509 of the Indian Penal Code (now replaced by Section 79 of the Bharatiya Nyaya Sanhita, 2023), which addresses the act of insulting a woman's modesty, would not apply in this instance.

A criminal case was filed against the three accused men after the complainant woman learned from others that they had allegedly referred to her as a prostitute. These remarks reportedly arose from disagreements between the accused and the complainant, all of whom were members of the same residents' association. The Kerala police charged the men under Sections 34 (common intention) and 509 (insulting a woman's modesty) of the Indian Penal Code (IPC).

In response, the accused filed a plea with the High Court to quash the criminal proceedings, with their counsel arguing that while the alleged remarks might be defamatory, Section 509 of the IPC could not be invoked. To resolve the matter, the Court examined the elements of the offense defined under Section 509 of the IPC.

The Court observed that the first part of this provision penalizes those who utter words or make gestures intended to insult a woman's modesty, specifically when such actions are meant to be heard or seen by the woman in question. In this instance, the judge highlighted that the alleged defamatory remarks were made to third parties and not directed at the complainant herself, who learned about them through others. Consequently, the Court concluded that the first part of Section 509 of the IPC would not be applicable in this case.

"Here, the first part of the offence is not at all made out since the defacto complainant has no case that the accused persons used the derogative text directly to the defacto complainant either to be heard or to be seen by her and the allegation is that the accused stated so to the inmates of the flat and nearby shop owners and the defacto complainant has no direct knowledge regarding the same," the Court observed.

The Court further noted that the second part of Section 509 of the IPC addresses acts intended to insult a woman's modesty through an invasion of her privacy. The Court opined that, in this case, since the remarks were made in a general context and not directly aimed at the complainant, they did not constitute an intrusion into her privacy. Ultimately, the Court concluded that while the remarks might be defamatory, they did not fulfill the criteria for the offense defined under Section 509 of the IPC.

"Even though the statement alleged to be spoken by the accused persons was not intending to be heard by the defacto complainant or seen by her, but to third parties, it may attract some other offence, the same itself would not constitute an offence dealt in second part of Section 509 of IPC prima facie," the Court said, while quashing the criminal case against the three petitioners.

The petitioners were represented by advocates John Sebastian Ralph V, Vishnu Chandran, Ralph Reti John, Giridhar Krishna Kumar, Appu Babu, Vishnumaya MB, Geethu TA, and Apoorva Ramkumar.

Advocates PV Saritha Venugopal and Basil Mathew represented the complainant.

Senior Public Prosecutor Renjit George appeared for the State.