While not lagging behind in taking a very pragmatic, persuasive and progressive stand, we see that while ruling on a very significant legal topic, the Jammu and Kashmir and Ladakh High Court at Srinagar in a most learned, laudable, landmark, logical and latest judgment titled Mehboob Ali vs Nisar Fatima in CRM(M) No.265/2022 that was pronounced as recently as on February 21, 2024 has minced just no words to hold in no uncertain terms that while no offence for outraging the modesty of a woman was made out, the charges under Section 323, IPC for causing hurt would be attracted. We thus see quite ostensibly that the Srinagar High Court thus very rightly quashed the issuance of the process by a Trial Court against a man for the commission of the offence under Section 354 (assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC) for allegedly slapping his wife in public. It must be also mentioned here that the High Court was hearing a plea that had been filed by the husband challenging the issuance of a process by the Trial Court on a complaint that had been filed by his wife for the offences under Sections 354 and 323 of the IPC.

It must be noted that the husband and the wife were at loggerheads and there was matrimonial disputes over some issues that were pending for some time between the two in the Family Court. In this context, we ought to definitely note that the wife claimed that when she had arrived at the Family Court for the purpose of attending a hearing that was pending in a matrimonial dispute, she was slapped publicly and was thus injured by her estranged husband. What turned the tables in favour of the husband was that even the counsel for the wife conceded that the offence under Section 354 of the IPC was not made out while adding further that the offence under Section 323 of the IPC however remained applicable. So no wonder that the offence under Section 354 of the IPC was thus so very rightly quashed. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Rajnesh Oswal sets the ball in motion by first and foremost putting forth in para 1 that:
The petitioner has filed the instant petition for quashing of the proceedings of the criminal complaint titled Nisar Fatima vs. Mehboob Ali pending before the Court of Judicial Magistrate 1st Class, Pulwama, (hereinafter referred to as ‘the trial court’) and also order dated 30.03.2022, by virtue of which the learned trial court has issued the process against the petitioner.

To put things in perspective, the Bench envisages in para 2 that:
The petitioner, husband of the respondent, claims to have filed a suit for restitution of conjugal rights against the respondent/wife and the respondent/wife too has filed a suit for cancellation of the marriage agreement executed between the parties. It is stated that while the above-mentioned litigations were pending between the parties, the respondent, at the behest of her family members, filed a false and flimsy complaint before the learned trial court which referred the same to the concerned police for investigation under Section 202 of Cr. P. C. After the report in terms of Section 202 of Cr. P. C was submitted by the police, the learned trial court vide order dated 30.03.2022, issued process against the petitioner for commission of offences under Section 323 and 354 IPC.

As it turned out, the Bench enunciates in para 3 disclosing that:
The petitioner has impugned the proceedings on the ground that the learned trial court could not have issued the process for commission of offence under Section 354 of IPC when the allegations as mentioned in the complaint did not make out a case for issuance of process under Section 354 IPC. It is also stated that the learned trial court has not recorded a statement of any witness of the complainant in support of the complaint at the time of presentation of the complaint and it has been wrongly mentioned in the order dated 19.03.2022 that the statement of the witness has been recorded.

On the one hand, the Bench then points out in para 4 that:
Learned counsel for the petitioner has submitted that the perusal of the contents of the complaint reveals that no offence under Section 354 IPC is made out against the petitioner. He further submitted that the learned Magistrate did not record the statement of any witness prior to passing of order dated 30.03.2022, by virtue of which investigation under Section 202 of Cr. P. C was ordered.

On the other hand, the Bench then states in para 5 that:
Per contra, Mr. S. A. Khan, learned counsel for the respondent very fairly submitted that the offence under Section 354 IPC is not made out but offence under Section 323 IPC is made out from the averments made in the complaint and there is nothing wrong in order dated 30.03.2022 whereby the process has been issued for commission of offence under Section 323 IPC.

Needless to say, the Bench then states in para 6 that:
Heard learned counsel for the parties and perused the trial court record.

Most significantly and so also most forthrightly, the Bench then further also propounds in para 7 that:
The perusal of the complaint reveals that the respondent moved an application for initiation of criminal proceedings/lodging of FIR against the petitioner alleging therein that when she had come to the Court on 19.03.2022, the petitioner thrashed her, as a result of which she got injured and he also slapped the respondent in public gaze. The learned trial court recorded the statement of the respondent who was identified by her counsel and the trial court thereafter in its wisdom deem it proper to refer the complaint to SHO, P/S Pulwama for investigation under Section 202 of Cr. P. C. The SHO, P/S Pulwama, submitted a report before the trial court and by placing reliance upon the said report, the trial court issued the process against the petitioner for commission of offences under Section 323 and 354 IPC. As rightly conceded by the learned counsel appearing for the respondent, from the averments made in the complaint, no offence under Section 354 IPC is made out but offence under Section 323 IPC is made out as the respondent has categorically stated that she was thrashed and slapped in public gaze by the petitioner when she had come to attend the proceedings.

It is worth noting that the Bench notes in para 8 that:
The trial court record reveals that before the matter was referred for investigation under Section 202 of Cr. P. C, the statement of the complainant was recorded by the learned Magistrate, as such, there is no force in the contention raised by the petitioner.

As a corollary, the Bench then expounds in para 9 mandating that:
For the foregoing reasons, this Court is of the considered view that order dated 30.03.2022, so far as issuance of process for commission of offence under Section 354 IPC is concerned, the same is not sustainable in the eyes of law and, accordingly, the same is quashed whereas the order impugned to the extent of issuance of process under Section 323 IPC is upheld. The petition is, accordingly, disposed of. The interim direction, if any, shall stand vacated. The trial court shall proceed ahead with the proceedings in accordance with law.

Finally, the Bench then concludes by holding in para 10 that:
A copy of this order be sent to the learned trial court for information and compliance.

In conclusion, we thus see that the Jammu and Kashmir and Ladakh High Court has ruled most explicitly, elegantly, eloquently and effectively that the slapping of wife by the husband in public will not attract the offence of outraging the modesty of a woman under Section 354 of the IPC but the charges under Section 323 of the IPC for causing hurt would definitely be attracted. There can be thus no gainsaying that all the Courts in similar such cases must definitely take into account what the Srinagar High Court has ruled in this leading case and then rule accordingly. No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh