Can a woman outrage modesty of another?

Source: The Times of India dated 28.02.2014

‘Can a woman outrage modesty of another?’ 
Court Seeks To Know Legal Provision

Rosy Sequeira TNN 

Mumbai: The Bombay high court on Thursday questioned if a woman can be accused of outraging the modesty of another woman and sought the legal provisions for it. 
    A division bench of Justice Naresh Patil and Justice V L Achliya on Thursday heard a petition by a family of six from a Borivli housing society, including the 78-year-old matriarch Sarlaben Shah, seeking to quash an FIR filed against them by neighbour Preeta Jain (55). 
    It started with a dispute over grilles that the Shahs fitted outside their ground-floor flat, which was opposed by their neighbours, including the Jain family. During an argument, Sarlaben’s granddaughter was allegedly assaulted and manhandled. On October 23, 2009, she lodged a complaint of molestation against Jain’s son and husband and an FIR was registered. 
    A few months later, on February 27, 2010, the Jains also got an FIR registered against the Shahs and the charges included molestation. 
    In the court, Shah’s advocate Pradeep Havnur questioned how two FIRs could be registered for the same incident. “It is absurd that a 78-year-old woman can be accused of molesting another woman,” he exclaimed. At that, the judges questioned if a woman could indeed molest another woman and what was the legal position. “This is a serious question. Can a woman molest another woman? Even scientifically? Because there are the allegations,” said Justice Patil. “Go through the law. If a woman does commit such an act, can she be tried under the available law for molesting a woman?” 
    On going through section 354 of the IPC, the judges noted that while the section began with the word “whoever”, it later went on to refer to the accused as a “he” and the victim a “she”. “Can a woman be accused of outraging the modesty of another woman under section 354? Get the legal position,” said Justice Patil to Havnur. The judges pointed out that even the amended section 354 A referred to an act committed by a man on a woman. While parting with the matter, the judges said housing societies must intervene and sort out such problems instead of parties filing cross-complaints and coming to court. 
    (Names of disputing parties changed) 

SPAT AT BORIVLI SOCIETY 
In 2009, the Shah family in Borivli fitted grilles outside their groundfloor flat, which was apparently opposed by some of their neighbours, including Preeta Jain’s family. During an argument, the Shah family matriarch’s granddaughter was allegedly assaulted and manhandled. They lodged a complaint of molestation against Jain’s son and husband on Oct 23, 2009. On Feb 27, 2010, the Jains lodged a counter-complaint, against the Shahs, one of the charges being molestation 
Section 354 of Indian Penal Code 
Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment which may extend to two years, or with fine, or with both

Courts can try a person not booked by police, rules Bombay High Court

Source: The Times of India dated 24.02.2014

Courts can try a person not booked by police, rules HC

Shibu Thomas TNN 

Mumbai: A trial court can use powers under the Criminal Procedure Code (CrPC) to initiate criminal proceedings against a person who may not have been booked by police in a case, the Bombay high court has said. Justice Revati Dere ruled that even if a person is not named as an accused in the police chargesheet, a court can launch prosecution against him at any stage of the trial. But it added that this power has to be used sparingly. The court’s order comes as a relief to Malabar Hill resident Mani Narayan in a 17-year-old case of assault and outraging her modesty (see box). 

    “It is well settled that once amagistrate takes cognizance of an offence, he can proceed against those offenders also who have not been sent up by the police and that absence of chargesheet is not a bar. The power of Section 319 of CrPC is not controlled by the result of investigation,” said Justice Dere. The court set aside as “premature” a sessions court order which while accepting that such powers were available to the magistrate had held that since it was an old case it would amount to abuse of the process of law. 

    The HC held that the delay in the case was not Narayan;s fault, but due to the fact that the accused were absconding for over a decade.

HOPE FOR COMPLAINANT AFTER 16 YRS I n 1997, Mani Narayan alleged that watchmen of her Malabar Hill building obstructed her on the instructions of her society’s secretary, assaulted her and outraged her modesty. The FIR was lodged against two watchmen. Narayan, however, claimed that the police had not recorded her complaint properly and had not named as accused the secretary and other watchmen. In 1998, she moved a magistrate’s court to order further investigations. The two absconding accused were arrested only in 2008. In 2011, the magistrate rejected her plea. The sessions court too rejected her application and held that the trial court’s powers were not tenable as the case was old. Narayan then moved the HC

HC: Apply Section 319 sparingly 
    Merely on the ground that the case is an old one cannot justify holding that invoking of Section 319 of the CrPC will amount to abuse of the process of the law,” said the judge. 

    The HC however cautioned that the power under section 319 had to be used properly and only when the court was convinced that there was enough material available to convict the accused. “The court has to use the said power sparingly and primarily to advance the cause of criminal justice and not as a tool at the hands of the court to cause harassment to persons who are not involved in the commission of the crime,” said the judge adding that the provision should be invoked when from the evidence it appears that a person who has not been named by the police had committed the offence. The court said that the provision should be used “only on the existence of compelling reasons and should not be exercised where the possibilities of the summoned persons, being convicted are remote”. 

    Under Section 319, the court can initiate prosecution of a person who is not booked but against whom there is evidence that he has committed the crime. The court can summon such a person, order his arrest or detain him for the purpose of inquiry or trial.

SC Strikes A Blow For Uniform Civil Code

Source: The Times of India dated 20.02.2014

Muslim personal law can’t curtail right to adopt: SC

Strikes A Blow For Uniform Civil Code

Dhananjay Mahapatra TNN 

New Delhi: In a landmark order indirectly pushing for the Constitution-suggested Uniform Civil Code, the Supreme Court on Wednesday ruled that personal law prohibition against adoption would not bar a Muslim from adopting a child if he chose the secular Juvenile Justice (Care and Protection of Children) Act route. 

    Giving the judgment on a PIL by Shabnam Hashmi nine years back, a bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and S K Singh said the JJ Act was a secular law which gave prospective parents the option to adopt a child. “A Muslim was always free to exercise his option either to adhere to the personal law prohibition against adoption or choose JJ Act route to take a child into his/her family,” the bench said, adding “To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution.” 

    Article 44 of the Constitution says, “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” The bench said, “The vision contemplated in Article 44 of the Constitution, that is a Uniform Civil Code, is a goal yet to be fully reached.” 

    The Muslim Personal Law Board had opposed Hashmi’s plea for a uniform adoption law that would prevail over all religious prohibitions. The board had given elaborate arguments against permitting Muslims to adopt children. The board had said Islam did not recognize an adopted child to be treated on a par with a biological child. “The Islamic law professes ‘kafla’ system under which the child is placed under ‘kafil’ who provides for the well-being of the child, including financial support, and this is legally allowed to take care of the child though the child remains the descendant of his biological parents and not of the ‘adoptive’ parents,” it said. 

SHOWING THE 'SECULAR' WAY 
    The Muslim Personal Law Board prohibits adoption, says Islam does not allow an adopted child to be treated at par with a biological child 

    SC refuses to restrain a Muslim from adopting a child if he/she chooses the Juvenile Justice (Care and Protection of Children) Act route 

    However, the court also feels that the time is not ripe to lift the statutory right to adoption to the level of a fundamental right 

    The (Juvenile Justice Care and Protection of Children) Act is a small step in reaching the goal enshrined by Article 44 (Uniform Civil Code)... The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs 

    — Supreme Court Not time yet to make adoption a fundamental right, says SC 

    The board attempted to give legal recognition to its religious ‘kafla’ system by informing the court that even UN Convention of the Rights of Child recognized it as an alternative to child care contemplated under the JJ Act. The court, however, refused to restrain a Muslim if he/she chose to take JJ Act route to adopt on the grounds that faith did not permit it. 

    Writing the judgment, Justice Gogoi said, “An optional legislation (JJ Act) that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of Uniform Civil Code is achieved. The same can only happen by collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active today.” 

    The conflict in thinking fuelled by dictates of religions was also the reason why the court felt the time was not ripe to lift the statutory right to adopt to the level of a fundamental right. It said, “Conflicting view points prevailing between different communities as on date on the subject makes the vision contemplated in Article 44, that is a Uniform Civil Code, a goal yet to be fully reached and the court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution,” the court said.

Disappointed Muslim board may seek review 

New Delhi: The SC decision on Wednesday to allow people of all religions, including Muslims, to adopt children, though it is not allowed under Muslim personal law, evoked mixed reactions from the community. While Syed Zafar Mahmood, former OSD to the Sachar Committee and Zakat Foundation of India president, called it the “best that could have happened”, the All India Muslim Personal Law Board (AIMPLB) said it was considering legal options against the judgment. The AIMPLB had vehemently opposed Shabnam Hashmi’s plea for a uniform adoption law in the SC. Pointing out that Prophet Muhammad encouraged adoption, Zafar Mahmood said, “The judgment dovetails the Islamic law with the law of the land. The SC, while clearly desisting from declaring it a fundamental right, has technically enabled Muslims to opt for adoption. This is the best that could have happened.” AIMPLB spokesperson Abdur Raheem Qureshi, however, said the judgment interfered with fundamental rights guaranteed under Article 25 of the Constitution. “We are mulling legal options, including seeking a review of the judgment,” he said. SQR Ilyas of the Welfare Party called the apex court judgment “unfortunate”.