Calling A Woman's Body Structure "Fine" Prima Facie Sexual Harassment: Kerala High Court Refuses To Quash FIR

The Kerala High Court on Monday (January 6) observed that a man making comments about a woman's body structure calling it “fine” prima facie amounts to a sexually coloured remark.

Justice A Badharudeen thus refused to quash the criminal proceedings initiated against the Petitioner for offences including Section 354A(1)(iv), 509 of the Indian Penal Code and Section 120 of the Kerala Police Act, 2011 (Act).

While Section 354A states that making sexually coloured remarks would constitute sexual harassment, Section 509 provision talks about acts intended to insult the modesty of a woman. Section 120 of the Kerala Police Act stipulates the penalty for causing nuisance and violation of public order.

It was the prosecution's case that while the complainant was working at the Electrical Section, Kerala State Electricity Board Ltd., the accused made sexually coloured remarks and overtures by commenting that her "body structure was fine". It was also alleged that the accused sent messages with sexual overtures to her mobile number.

However, the same was opposed by the accused-petitioner who argued that mere reference that a person has a nice body structure would not amount to sexually coloured remarks within the ambit of IPC Sections 354A(1)(iv) or 509 or provisions of the Kerala Police Act.

At the outset, the High Court discussed these offences at length. Referring to Section 509, the Court referred to its previous decision in XXXX . State of Kerala, (2024) wherein the court had discussed the ingredients of Section 509. Upon perusal of the same, the Court thus concluded:

“Thus when utterance of any word, makes any sound or gesture, or exhibits any object, with an intention to insult the modesty of a woman or to intrude upon the privacy of a woman, the said overt acts would attract offence under Section 509 of IPC. On analysing the prosecution allegations, the ingredients to attract offence under Section 509 of IPC are made out, prima facie".

Moving forward to Section 354A, the Court highlighted that any man making sexually coloured remarks to a woman is guilty of the offence of sexual harassment. At this, the Court rejected the petitioner's argument and held:

“Having noticed the facts of the case, it is discernible that the prosecution case is specifically made out, prima facie, to attract the offences alleged to be committed.”

Also, with respect to Section 120 of the Act, the Court observed that any act of causing inconvenience or annoyance through any means of communication by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger, would constitute an offence under this Act. Reliance was placed on its recent decision in Raveendran V.K v. State of Kerala & anr., (2024). Considering the facts of the case, the Court said that this Section would squarely apply to the facts of the present case.

Before parting, the Court also noted that the proceedings were not initiated maliciously with ulterior motives. On these counts, the Court refused to quash the criminal proceedings initiated against the accused.

“Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments to see whether there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings.”

It thereafter dismissed the plea.

Case name: R. RAMACHANDRAN NAIR v. STATE OF KERALA and Others., CRL.MC NO. 4729 OF 2021

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