Kerala HC: 'Prostitute' Remark Must Be Heard to Be Offence u/s. 509 of IPC 

The Kerala High Court's judgement on September 30, 2024, delivered by Justice A. Badharudeen, addresses a crucial aspect of the legal framework concerning offences against the modesty of women under Section 509 of the Indian Penal Code (IPC). 

The case involved the petitioners, residents of the same building as the complainant, were accused of making defamatory remarks against the complainant, allegedly stating that she was a prostitute. These remarks were reportedly made to third parties, including other residents of the flat and nearby shop owners, without the complainant's direct knowledge. The complainant claimed that this conduct constituted an offence under Section 509 IPC, which penalises any act, word, or gesture intended to insult the modesty of a woman.

The petitioners approached the Kerala High Court under Section 482 of the Criminal Procedure Code (CrPC), seeking to quash the criminal proceedings. They argued that even if the alleged defamatory statements were true, they did not meet the legal threshold required to attract an offence under Section 509 IPC.

Section 79 of Bharatiya Nyaya Sanhita,2023 is corresponding to Section 509 of IPC. The same reads as under:

“Word, gesture or act intended to insult modesty of a woman - Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object in any form, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.”

The provision is intended to safeguard the modesty of women by penalizing acts that intrude upon their dignity or privacy. The Kerala High Court noted that for an offence to be punishable under Section 509 IPC, the act, word, or gesture must be intended to be directly heard or seen by the woman concerned, thereby intruding upon her modesty or privacy. The section requires two primary elements:

1. Utterance of a word, sound, or gesture aimed at a woman.

2. Intrusion upon the woman's privacy through such an act.

In the present case, the Court emphasised that the alleged defamatory remarks were not directly addressed to the complainant. The petitioners made the remarks in the absence of the complainant, intending them to be heard by third parties, such as other residents and shop owners. The complainant had no direct knowledge of these statements, and they were not made in her presence.

Citing previous judicial interpretations, the Court observed that mere utterances made to third parties without the intention of the complainant hearing them cannot constitute an offence under the first part of Section 509 IPC. The Court referred to its earlier decision in xxxx v. State of Kerala (2024 KHC Online 584), where it was held that abusive or unpleasant words spoken without intending the woman to hear them do not amount to an offence under Section 509 IPC.

The Court also analyzed the second part of Section 509 IPC, which deals with the intrusion upon a woman's privacy. The term "intrusion" was interpreted using its dictionary meaning, which implies an unwelcome or uninvited entry into another's private space or life. In this case, the petitioners' remarks were made to third parties and did not involve any direct intrusion upon the complainant's privacy. The Court reasoned that even if the remarks were defamatory, they were not directed at the complainant in a manner that would constitute an invasion of her privacy.

The Court further remarked that this case arose from a disagreement within a residents' association, where both the complainant and the accused were members. Such disputes, even if they involve defamatory statements, do not automatically translate into criminal offences under Section 509 IPC.

### Section 79 of the Bharatiya Nyaya Sanhita (BNS)

The Court also examined the equivalent provision under the newly enacted Bharatiya Nyaya Sanhita (BNS) 2023, which mirrors Section 509 IPC. Section 79 of the BNS retains the same elements, acts intended to insult the modesty of a woman, to be heard or seen by her, or to intrude upon her privacy. The Court reiterated that the petitioners' actions did not satisfy the requirements of this provision either.

The Kerala High Court concluded that the allegations against the petitioners, even if taken at face value, did not fulfill the essential ingredients of an offence under Section 509 IPC or Section 79 of the BNS. The defamatory remarks were made to third parties, not to the complainant herself, and there was no direct intrusion upon her privacy. Accordingly, the Court quashed the criminal proceedings, allowing the petitioners' plea under Section 482 CrPC.

Case Details-Anson I.J. & Ors. v. State Of Kerala & Ors.

Advocates for the Petitioners- Mr. John Sebastian Ralph V, Mr. Vishnu Chandran,Mr. Ralph Reti John

Advocates for Respondents - Senior Public Prosecutor Renjit George; Mr P.V. Saritha Venugopal and Mr  Basil Mathew