[S.509 IPC] Objectionable Words Written In E-Mail Or On Social Media Can Be Penalised For Insulting Woman's Modesty: Bombay High Court

In a significant ruling, the Bombay High Court on Wednesday (August 21), held that even a 'written' insulting word, either on email or social media, that could lower the dignity of a woman, is sufficient to book someone under section 509 (insulting the modesty of woman) of the Indian Penal Code (IPC).

A division bench of Justices Ajay Gadkari and Dr Neela Gokhale refused to accept the contention that as per section 509 (which penalises any words uttered to insult a woman), the word 'uttered' would only mean 'spoken words' and not words 'written' on an email or social media posts etc. 

The judges said that it is the bounden duty of the Court to adopt a purposive approach of interpretation i.e. which gives rational meaning to the language of the legislature.

"Advent of modern technology has opened- up wide spectrum of means to communicate an insult. When an e-mail containing objectionable content likely to outrage the modesty of a woman stares at her, can we permit the perpetrator to walk away undaunted, simply because the insult is written and not spoken. Interpretation must correspond to societal transformations and re-evaluate legal principles to ensure fairness, justice, and equity," the judges said in the order.

As society evolves, so must the interpretation of the law to address emerging challenges and promote social progress, the bench said, adding that the law is a dynamic entity capable of reflecting and adapting to a society's changing needs and values.

"It must be understood to support legislative intent. The intention of the legislature is to deter action of the offender as could be perceived as one which can shock the sense of decency of a woman. The manner in which the offender does this is not restricted to oral abuse or gesture alone. The word 'utterances' include statements, speeches, exclamations, notes and all of it can well be in a text form relayed physically or by electronic medium," the bench observed.

The judges opined that the word 'utterance' must not be given a pedantic interpretation.

"If such narrow interpretation is accepted, many a men will walk away, unhindered by consequences merely by shooting e- mails or using social media platforms to malign and insult a woman and outrage her modesty. Modern technology makes such manner of perpetrating the offense verily real. Similarly, to 'exhibit' an object is not restricted to actually and physically exhibiting it by the accused himself, but the exhibition can be by way of an agency of a device such as a personal computer, mobile phone or any other electronic device," the judges held.

The observations were made while disposing of a writ petition filed in 2011 by one Joseph De'Souza, a resident of a plush society in Colaba, who sought to quash a First Information Report (FIR) filed way back in December 2009 against him by another resident of his society, one Zinnia Khajotia.

Notably, the FIR was lodged in December 2009 and now both the complainant as well as the petitioner have become senior citizens, with both attaining the age of more than 70 years.

According to the FIR, there were some disputes between Joseph and Zinnia, over the latter interfering in the business of the society as her mother was elected as the chairperson of the society. Due to the dispute, Joseph shot several emails to Zinnia in 2009, making objectionable comments on her character. He even carbon copied (CCed) the email that he sent to Zinnia to other members in the society.

In its order, the bench noted that in one of the objectionable emails, the petitioner addressed Zinnia as 'Dear Bonnie' though the same not being an endearment or an alias name for her but it referred to the character in a famous movie titled 'Bonnie & Clyde' which was based on the life of two criminals.

"The intention of the Petitioner in referring to her in the e-mails as 'Bonnie' itself reveals his intent to insult her. He proceeds to berate her in the e-mails by narrating aspects in her life insinuating that, many respectable and distinguished members in society have outcast her and her family and that she has been exposed in their eyes. Names of various famous personalities are dropped alleging that she and her late husband lost credibility in their opinion. She and her family are degraded and made out to be crooks and beggars in the e-mails," the bench noted.

The contents of the e-mails, over and above the alleged offending words that are part of the F.I.R. are undeniably defamatory and aimed to lower the image and reputation of Zinnia in the eyes of society and particularly to the persons, to whom its copies are forwarded, the bench opined.

"We say this, as the e-mails were cc'ed to other members of the housing society in which the parties reside. The act of copying third persons in the e-mails emphasises the intent of the petitioner in hurting, abusing, and insulting her to an extent that is undoubtedly likely to outrage her modesty. The Petitioner is not merely being rude or unchivalrous but the words are directly related to the gender of the Respondent No. 2. This is enough to outrage her modesty. The vein and strain of the writings emphasise the intent of the Petitioner in putting words on electronic medium and transmitting the same to the Respondent No. 2 herself and others in the society to insult her. The essence of Section 509 of the IPC that, emphasises intent to be the linchpin of the offence and necessitates a deliberate affront to a woman's modesty for the Section to be invoked prima-facie appears to be satisfied," the judgment reads.

Further, the bench said that an insult can manifest as an intrusion upon the woman's privacy, meaning thereby encroaching upon her personal space or violating her sense of privacy intentionally, in a manner that affronts her modesty. The second part of section 509 'intrudes on her privacy' is stand-alone and unrelated to the 'essence of her modesty' the outrage of which is related to sex, the judges noted.

"The content of the e-mails share information and details about her and her family, which the Petitioner claims to know. Sharing such details of her with third persons, especially the residents of the same Society who she is likely to see frequently and without her consent is an affront to her personal dignity. She has a right to be left alone and live her life in a dignified manner. In the event that the Petitioner had any disagreement with her, it was for him to take it up with her directly by verbal communication or written or through electronic medium but the act of copying others on e-mails with no purpose evident but to degrade her, clearly demonstrates his intent," the bench underscored.

Thus, the bench concluded that the FIR prim facie discloses the offence under section 509 of the IPC and refused to quash the same. It also refused to quash the invocation of section 67 of the Information & Technology Act. It, however, quashed the FIR to the extent of section 354's invocation.

Appearance:

Senior Advocate Haresh Jagtiani along with Advocates Suprabh Jain, Pushpvijay Kanoji, Siddhesh Jadhav instructed by Haresh Jagtiani & Associates appeared for the Petitioner.

Additional Public Prosecutor Vinod Chate represented the State.

Advocates Kushal Mor, Tanmay Karmarkar and Roshan Chouhan represented the Victim.

Case Title: Joseph Paul De Souza vs State of Maharashtra (Criminal Writ Petition 3480 of 2011)

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