Gender Neutrality under Section 354, IPC

The question for consideration herein is that whether a woman can be an accused under Section 354, IPC?

“354. Assault or criminal force to woman with intent to outrage her modesty.—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 may extend to two years, or with fine, or with both.” (emphasis supplied)

Whether the word “he” in Sec. 354, IPC has to be interpreted so as to include male(s) as well as female(s)?

For the answer to this question, we may refer to the following provisions:

Section 8 of IPC: The pronoun “he” and its derivatives are used of any person, whether male or female.

In the case of Girdhar Gopal v. State¹ it is held that:-

The pronoun “he” in the expression “or knowingly it to be likely that he will thereby outrage her modesty” in Section 354 must be understood, according to the present section, as referring to “any person, whether male or female”.

Section 13 of the General Clauses Act, 1897- Gender and number: In all Central Acts and Regulations, unless there is anything repugnant in the subject or context-

1. Words importing the masculine gender shall be taken to include females; and

2. Words in the singular shall include the plural, and vice-versa.

In accordance with the rule that words importing masculine gender are to be taken to include females, the word ‘men’ may be properly held to include women², and the pronoun ‘he’ and its derivatives may be construed to refer to any person whether male or female.³ So the words ‘his father and mother’ as they occur in Section 125(1)(d) of the Cr. P.C. have been construed to include ‘her father and mother’ and a daughter has been held liable to maintain her father unable to maintain himself.⁴

Person may include a natural person, may be “Male” or “Female”. But where legislature specifically intends to refer male human being, it may use man & woman. Taking into view these definitions and explanations in the IPC, when Sec. 125 of Cr. P.C. use the word person it has to be taken to include both “Male” and “Female”. It means that if any “Male” or “Female” having sufficient means neglect or refuses to accept “his” or “her” liability to maintain then if any other conditions of Sec. 125, Cr. P.C. are show to exist, liability may be fastened to maintain.⁵

Hence, the intention of the legislature under Sec. 354 is to accuse not only a male but also a female. The same is evident by the use of the word “Whoever” u/S 354 as against the use of the terminology “a man is said to commit rape” u/s 375⁶.

The intention of the legislature is crystal clear wherein it depicts that under Section 354 the offence of outraging the modesty of a woman can be committed by any person whether male or female. As far as the offence of rape is concerned, only a male can be booked as an accused owing to the language of the Section 375.

For Section 376⁷, where the term “whoever” is used, it can be said that the ambit of the term “whoever” is restricted by the term “rape” which can only be committed by a man. Therefore, under Section 376, only a man can be convicted.

Whereas for an offence u/s 376D⁸, woman can also be made an accused for gang rape as the provision entails the term “persons” which can include man as well as woman. This can be said that the offence of gang rape is an altogether different class of offence. (e.g. The elements of the offence of Robbery and Dacoity have nearly the same. The difference in the number of persons committing the offence makes the two, two different offences.)

Further, where no express provision lies for the punishment of the abetted act, then the quantum of punishment for such act shall be equal to the punishment of the abetted act.⁹

Therefore, in the ultimate analysis, the intention of the legislature does not seem to absolve any person, male or female for their involvement or assistance in the commission of the offence punishable under section 354.

1 AIR 1953 Madh Bha 147 (148) : 1953 Cri LJ 964.

2 Charlton vs. Lings (1868) LR 4 CP 374; 42 Digest 615.

3 Section 8, IPC.

4 Vijaya Manohar Abrat (Dr.) (Mrs.) v. Kashiram Rajaram Sawai, (1987) 2 SCC 278, p. 281 : AIR 1987 SC 1100.

5 1999 (5) Kant LJ 183 (191) : 1999 (3) Kant LD 7.

6 “[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—………”

7 “376. Punishment for rape- 1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not he less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.”

8 “Gang rape. 376D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim”

9 “109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.—Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abet­ment, be punished with the punishment provided for the offence. Explanation.—An act or offence is said to be committed in conse­quence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.”