There is compromise with my wife in a criminal case. My wife is living with me after compromise but the court refused to quash criminal case initiated by my wife under 498 A IPC. There was some dispute between me and my wife therefore, my wife had left my house and was living with her parents. In the influence of her parents she lodged an FIR for the offence of cruelty and demand of dowry. After a lapse of six years we had decided to live together hence, compromised all matters and settled our dispute out of the court. Then I moved an application to the court for dropping the criminal case. But the court has refused. My wife is not ready to appear in court, the court muharrir said that a warrant shall be issued against my wife if fails to appear in court. I am facing great problem how to settle this criminal case.
Asked from: Uttar Pradesh
The trial court's refusal of your application is based on the fact that the offences of cruelty and dowry demand are non-compoundable, as per Section 320 of the Code of Criminal Procedure. This section categorises certain offences as compoundable, meaning they can be settled between the parties involved upon the will of the victim. However, Section 498A IPC and Sections 3 & 4 of the Dowry Prohibition Act are not designated as compoundable offences under Section 320 CRPC. Therefore, the trial court's decision to deny your application appears appropriate.
In this situation, your next course of action would be to file a joint petition in the High Court under Section 482 of the Code of Criminal Procedure (CrPC) for the quashing of the entire criminal proceedings. The High Court possesses exceptional power under Section 482 CRPC and can consider special circumstances to determine whether it is expedient and in the interest of justice to allow the prosecution to continue.
Additionally, in Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], the Supreme Court held that the sole purpose of Section 482 crpc is to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits.
Your wife is living with you and she is not willing to carry on this criminal proceeding. Therefore, chances of conviction are very bleak. If this proceeding will carry on and your wife becomes hostile the court cannot hold you guilty. So this proceeding became a futile exercise for both complainant and the court. Hence, such a proceeding should be quashed in the interest of justice.
In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], the Supreme Court established that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features present in a particular case to determine whether it is expedient and in the interest of justice to allow a prosecution to continue. If the court deems that the chances of an ultimate conviction are slim and no useful purpose is likely to be served by continuing with the criminal prosecution, it may quash the proceedings.
In B.S. Joshi & Ors vs State Of Haryana & Anr AIR 2003 SC 1386 the Supreme Court has held that:
In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
If the offence is non-compoundable the high court has power under Section 482 crpc to quash that proceeding for the ends of justice. Provisions of Section 320 crpc does not limit the inherent power of the high court vested by Section 482 crpc. The high court may quash the criminal proceeding despite the fact that offences are non-compoundable. For more legal help please visit Kanoon India.
Penile penetration is mandatory for rape under section 376 IPC before amendment act 2013. My brother has been convicted in the fake criminal case lodged under section 376 and 354 IPC. He was contesting election for gram pradhan in 2009 and won that election. Our village is dominated by muslim community but my brother, being a hindu had good support from the muslim. Therefore, he successfully won the election. After the election that FIR was lodged by the rival group. The allegation is that my brother went to the house of the victim and compel her to hold his penis. There was no evidence of sexual intercourse. The father of the victim was hostiled during the trial but the court overlooked all that evidence and convicted him for seven years. In this situation, what is the possibility of saving my brother? He is in jail from 3rd March 2024.
Asked from: Uttar Pradesh
Prima facie, it seems that the conviction is bad in law because in the absence of penile penetration, the offense of rape is not established. You mentioned nothing about the medical report of the victim, which is crucial evidence to establish the fact of penile penetration. Without a medical examination report, the court cannot form an opinion about whether there was penetration of the penis into the victim's vagina.
In this situation, you should file an appeal against the order of conviction. This is the only remedy available in this scenario. Before the enforcement of the criminal law amendment act 2013, penile penetration was mandatory for a rape conviction. If the accused did not penetrate his penis into the victim's vagina, he could not be punished for the offense of rape.
Holding the penis in hand may amount to the offence of outrage of modesty if it was against the will of the victim. However, you did not mention the age of the victim. If the victim's age is below 12 years, her consent is immaterial. The offence under Section 354 is made out if the victim's age is below 12 years. Therefore, the punishment under Section 354 IPC is appropriate.
When the victim's age is between 12 to 18 and she is confronted in her statement under section 164 of the CrPC, then the court shall presume that she did not give her consent. In this situation, the conviction seems proper.
However, when the victim's age is above 18 years and there is no evidence of use of force, deceitful act, or compulsion from the accused, the offence under Section 354 IPC is not established. Because an adult woman is competent to give her consent. For more legal help please visit Kanoon India.
Also read: Physical injury is not mandatory to prove the charge of rape
Whether revision lies against order in domestic violence. My wife has filed a case under the domestic violence act for the maintenance, protection order and residential relief. Now the magistrate granted an interim order as five thousand rupees per month. My advocate filed a revision in the sessions court and sought cancellation or alteration in the order of interim maintenance. When my advocate appeared the opposite party objected that it is not maintainable. My advocate is not willing to withdraw that application. Please help.
Asked from: Bihar
Your advocate has filed an incorrect application in the sessions court. A revision application is not maintainable because you have right to appeal under Section 29 DV Act. Section 29 of the Domestic Violence Act states that an appeal shall lie against any order passed by the judicial magistrate under this act.
When special statutes such as the Domestic Violence Act provide a specific procedure, they shall prevail over the procedures laid down in general law. Hence, the provisions of the Code of Criminal Procedure shall not apply in your case.
You need to file an appeal to the sessions court under Section 29 of the DV Act. Every order passed by the judicial magistrate under Domestic Violence Case is made appealable under DV Act. At this stage, you should withdraw that revision application and file an appeal.
Sessions court shall admit your appeal and if there is any apparent error it may remand the case to trial court. If you again feel aggrieved from the order of the appellate court, you can file a revision in the High Court under Article 227 of the Constitution. For more legal help please visit Kanoon India.
I was earning around 1.5L and my wife is earning around 75K. I lost my job due to the layoffs and trying to search for the same. I put the application in the District court that I have lost my job but they have put up the maintenance of 10K under DV act. To counter this my lawyer asked me to move to session court and we moved there. After moving to session court we did not get any stay and the court said that I have left the job intentionally and would have to pay the maintenance. What should we do in this case? Should we move to high court? As I am currently in the search of a job and my wife is also earning handsomely and we do not have any children either.
Asked from: Uttar Pradesh
As per the facts of your case, it seems that your wife is an educated lady and earning well to maintain herself. A wife who is well educated and her earring is sufficient to maintain her, she is not entitled for maintenance under Section 125 crpc and Domestic Violence Act.
In the case of Shailja & Anr. v Khobbanna, (2018) 12 SCC 199, the Supreme Court ruled that the mere fact that a wife is capable of earning is not sufficient grounds to reduce the maintenance awarded by the Family Court. Instead, the Court must assess whether the wife's income is adequate to sustain her in a manner consistent with the lifestyle enjoyed in the matrimonial home with her husband. This emphasises that maintenance awards should reflect the need for a standard of living comparable to that during the marriage, irrespective of the wife's earning capacity.
You should plead that the applicant (wife) is earning well and her income is sufficient to maintain herself. Hence, she is not entitled to get maintenance. When the wife has sufficient means to maintain herself the maintenance case is liable to be dismissed. For more legal help please visit Kanoon India.
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Wife asking for shelter money in DV case while taking maintenance in Section 24 of Divorce case. This case is 10 years old, the wife was awarded 6k maintenance + 4K for shelter in DV case. Later she filed a section 24 application where she is taking 16k per month since Oct 2016. Now she has filed an application in DV court to take the arrears of 4K per month awarded for shelter since 2014. 1. On record, the wife is living with parents all this while Section 24 maintenance is awarded on the basis on 1/3 of my salary in session court in 2016. In 2014 she was offered money in DV case including but she refused on record and filed an application in High court in 2016 for staying in my parents house, which was dismissed in Mar 2024.
Now that the application is dismissed in high court, she thought about claiming shelter 4 k amount. Is she really entitled to claim 4K per month in DV case for the last 10 years while taking 16k maintenance in section 24? If not, please guide and share judgements /authority in such cases.
Asked from: Uttar Pradesh
In the present circumstances, it appears that your wife may not be entitled to receive four thousand rupees as shelter money in the Domestic Violence case. Additionally, the amount of sixteen thousand rupees as ad-interim maintenance under Section 24 seems excessively high, suggesting that she may be receiving more than her actual requirement..
Your wife is obligated to demonstrate her genuine need for maintenance to sustain herself and prevent destitution. Enjoying a certain lifestyle while living apart from the husband does not necessarily entitle her to maintain such a standard without valid justification of need.
You should request the court to adjust the amount of maintenance being paid to the wife across different proceedings. Specifically, the interim maintenance amount of sixteen thousand per month under Section 24 of the Hindu Marriage Act is deemed excessively high and requires adjustment.
In your case, the adjustment of maintenance is necessary to prevent the respondent/husband from being burdened with complying with successive maintenance orders issued under different enactments.
Wife cannot get more alimony than one
The Supreme Court, in the case of Rajnesh v. Neha (2020 SCC OnLine SC 903), has provided guidelines concerning the maintenance of a wife, including the adjustment of maintenance amounts made in various proceedings. These guidelines aim to ensure fairness and clarity in the determination and adjustment of maintenance obligations. These guidelines address several key aspects including:
- Overlapping Jurisdiction: Clarification on how to address overlapping jurisdiction under various enactments concerning the payment of maintenance.
- Payment of Interim Maintenance: Guidance on the payment of interim maintenance to the wife during the pendency of proceedings.
- Criteria for Determining Quantum of Maintenance: Criteria and factors to be considered in determining the amount of maintenance payable to the wife.
- Commencement Date of Maintenance: Clarification on the commencement date from which maintenance is to be awarded, specifying the retrospective or prospective nature of such orders.
- Enforcement of Maintenance Orders: Instructions on the enforcement of maintenance orders to ensure compliance with the court's directives.
The Court observed that although a party can approach the Court under one or more enactments, the relief sought under each Act is distinct and independent. However, simultaneous operation of these Acts can result in multiple proceedings and conflicting orders, which needs to be streamlined. This is to ensure that the respondent/husband is not burdened with complying with successive maintenance orders issued under different enactments.
It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.
Rajnesh v. Neha (2020 SCC OnLine SC 903)
The supreme court directed that both parties involved in maintenance proceedings, including those pending before the relevant Family Court, District Court, or Magistrate's Court nationwide, are required to file an Affidavit of Disclosure of Assets and Liabilities.
You should pray from the court that the opposite party produce assets and liability affidavit and disclose her expenses and source of income. You should also adduce that affidavit and disclose your assets, salary and liability.
The maintenance amount awarded should be reasonable and realistic, avoiding extremes. It should neither be so extravagant that it becomes oppressive and unbearable for the husband, nor so meagre that it pushes the wife into penury. The adequacy of the amount should ensure that the wife can maintain herself with reasonable comfort
Rajnesh v. Neha (2020 SCC OnLine SC 903)
After receiving an affidavit from both parties, the court shall adjust the amount of maintenance. The purpose of granting interim or permanent alimony is to prevent the dependent spouse from falling into destitution or vagrancy due to the breakdown of the marriage, and not to punish the other spouse.
Relevant factors for determination of amount of maintenance
In determining the quantum of maintenance payable to an applicant, the court considers various factors including:
- The status of the parties involved.
- The reasonable needs of the wife and dependent children.
- The education and professional qualifications of the wife..
- Whether the wife has any independent source of income.
- Employment status prior to and during the marriage.
- The financial capacity of the husband, including income, reasonable expenses, and liabilities.
- The standard of living of the husband, considering inflation and cost of living.
- The husband's obligation to provide for the family.
- Child's expenses including food, clothing, residence, medical care, and education.
- Additional expenses of the husband.
You should request the court to adjust the amount of maintenance after considering all payments made to your wife under different laws/proceedings. The court will determine the maintenance amount by taking into account the payments made under Section 24 of the Hindu Marriage Act and under the Domestic Violence Act. This will ensure a fair assessment of the overall maintenance obligations. In this situate wife asking for shelter money is not tenable because it'll become excessive and beyond the financial capacity of husband. For more legal help please visit Kanoon India.
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Circumstantial evidence can be form the basis of conviction if there is no eye witness and circumstances of chain is complete. I am a teacher and the most senior staff member in my school after the principal. When the principal was on leave for ten months, I was in charge of our school. During my tenure as acting head, scholarships were distributed to the students. The list of eligible students was prepared by the principal in consultation with the district school inspector. No changes were made during my tenure, but later on, an investigation was conducted by the Basic Siksha Adhikari in the district and found that as many as 236 students received scholarships without being eligible.
The entire allegation was levelled against me. An FIR was lodged, and a charge sheet was submitted. Now, the trial is at an advanced stage. The entire prosecution relies upon circumstantial evidence. There is no evidence regarding the manipulation of data during my tenure. The school inspector signed off on the list of eligible students, and all those who received scholarships were included. What is the possibility of my guilt?
Asked from: West Bengal
In the present case admittedly, there are no eye-witnesses to the incident and the conviction of the appellant solely rests on the circumstantial evidence. Circumstantial evidence refers to evidence that indirectly proves a fact through inference. Unlike direct evidence, which directly proves a fact without the need for inference (such as eyewitness testimony or a confession), circumstantial evidence requires the judge to draw conclusions based on a combination of circumstances and facts presented.
Circumstantial evidence can be highly persuasive if it establishes a chain of events or a pattern that leads to a logical conclusion about the guilt or innocence of the accused. However, it is subject to scrutiny and must be evaluated carefully by the court. The Indian legal system recognizes circumstantial evidence as valid and admissible, provided it meets certain criteria, including relevance, reliability, and consistency.
In your case, there is no evidence to prove that you had manipulated the data prepared by the principal. The principal was the one who best knew the eligible students for the scholarship. As the incharge of the school, you simply took custody of that list. All the students listed therein received scholarships.
The fact that scholarships were dispersed during your tenure as incharge does not necessarily imply that you entered the names of ineligible students. There must be concrete evidence to establish that you manipulated the list during your tenure. The circumstantial evidence must lead to only one conclusion that you have entered the name of ineligible students in that record. Failure to prove this fact the chain of circumstances remains incomplete.
The law concerning sentencing based solely on circumstantial evidence is well-established. In S. K. Yusuf vs State Of West Bengal AIR 2011 SC 2283 the hon'ble supreme court has held that
The circumstances leading to the conclusion of guilt must be thoroughly established. These established facts should only align with the hypothesis of the accused's guilt and cannot be explained by any other scenario. The circumstances should be conclusive and definitive. A complete chain of evidence must be presented, leaving no reasonable doubt about the accused's innocence, and indicating that it is highly probable that the accused committed the act.
The prosecution has the responsibility to establish the chain of circumstances. One crucial circumstance is the manipulation of data, which must be proven by the prosecution. Without the prosecution proving this fact, even through the circumstantial evidence, the court cannot convict you.
Additionally, there is no evidence to support the claim that students not mentioned in the alleged list received scholarships. It proves that you have no role in commission of the offence. In Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306) the supreme court has reiterated that
The circumstances supporting the inference of an accused's guilt should be unequivocal and align solely with the hypothesis of the accused's guilt. They should be incapable of being explained by any other scenario except the guilt of the accused. When all the circumstances, considered together, inevitably lead to the conclusion that the accused alone is responsible for the crime, the inference becomes irresistible.
If there is no evidence of manipulation with the list, the chain of circumstances does not lead to your guilt. The absence of your involvement in the commission of the crime breaks the chain of circumstances, resulting in your acquittal. Therefore, there is no chance of your guilt because suspicion cannot form the ground of conviction. For more legal help please visit Kanoon India.
It is not mandatory for the accused to be arrested automatically upon the lodging of an FIR. Whether it is mandatory that the accused may be arrested after lodging an FIR? I am accused in a criminal case punishable under section 323, 504 IPC. When the offence was committed I was in Mumbai where I'm working in a company. The investigating officer is pressuring my family to call me and produce before the court otherwise an arrest warrant will be issued against me. My parents are afraid and they have bribed him to protect me from possible arrest. Now he is not disturbing me. What is the possibility of arrest in that offence?
Asked from: Uttar Pradesh
The alleged offences are punishable with the imprisonment for a term below seven years. Accused cannot be arrested automatically after lodging of FIR. As per Section 41 of the code of criminal procedure, the investigating officer has to state the reason for arrest. In Arnesh Kumar v. State of Bihar (2014) by the Supreme Court of India laid down important guidelines regarding the arrest of an accused in cases where the offence carries a punishment of up to 7 years' imprisonment. The judgment emphasised the need for police officers to exercise caution and conduct a thorough investigation before resorting to arrest.
Following the Arnesh Kumar judgment, it is not mandatory for the accused to be arrested automatically upon the lodging of an FIR for offences punishable with up to 7 years' imprisonment. The police are required to consider factors such as the necessity of arrest for the purpose of investigation, the possibility of the accused fleeing or tampering with evidence, and the seriousness of the offence before deciding on arrest.
However, it's important to note that there may still be circumstances where immediate arrest is necessary, such as cases involving violence, threat to public safety, or the possibility of the accused fleeing to avoid justice. The judgment of Arnesh Kumar serves to prevent the arbitrary and unnecessary arrest of individuals and encourages the police to prioritise investigation and evidence collection before resorting to arrest.
In Siddharth v. State of U.P., (2021) 1 SCC 676, the Supreme Court emphasised that in the normal and ordinary course of events, law enforcement agencies should refrain from arresting individuals and sending them to jail, especially if it is feasible for the police to conduct the investigation without resorting to arrest, and if the accused cooperates fully with the investigating officer.
Arrest should only be considered in cases of utmost necessity, such as when it is indispensable for the completion of the investigation, for instance, if the individual is required for the recovery of incriminating evidence or weapons, or to gather information about accomplices or circumstantial evidence.
Additionally, arrest may be warranted if the investigating officer or the officer in charge of the police station believes that the accused's presence is difficult to secure due to the serious nature of the crime, raising concerns about the individual's potential flight from justice or defiance of legal proceedings.
Personal liberty is a fundamental aspect of our constitutional mandate. The decision to arrest an accused during an investigation is warranted when custodial interrogation is deemed necessary, particularly in cases of serious crimes or when there is a risk of tampering with witnesses or the accused fleeing from justice.
In Joginder Kumar v. State of U.P., (1994) 4 SCC 260 the Supreme Court has emphasised that if arrests become routine, it can inflict immeasurable harm to the reputation and self-esteem of an individual. Accused should not be arrested if the investigating officer lacks reason to believe that the accused will evade the law or defy summons. Where the accused consistently cooperated with the investigation, it is difficult to comprehend why there should be an imperative for the officer to effect the arrest.
In your case the investigating officer has to issue a notice under Section 41A of the code of criminal procedure to secure your appearance during the investigation. Section 41A of the Code of Criminal Procedure (CrPC) pertains to issuance of notice to persons accused of committing offences punishable with imprisonment up to seven years.
This notice serves as an alternative to arrest, therefore, accused cannot be arrested automatically. The purpose of Section 41A is to promote fairness and transparency in criminal proceedings by giving accused individuals an opportunity to cooperate with the investigation without being arrested, particularly in cases where the offence is not serious and does not warrant immediate arrest.
You should immediately file a writ petition in the high court under Article 226 for protection against illegal arrest. The alleged offences are simple and of a private nature. There is no chance of fleeing from court, and there is also no opportunity to tamper with the evidence. Then, the high court may direct the investigating officer not to take any coercive action against the accused i.e. you. Alternatively you can move anticipatory bail application under Section 438 of the code of criminal procedure. For more legal help please visit Kanoon India.
Quashing of cheque bounce case if director was resigned much before issuance of cheque. I was a director in the company to which some dispute arose. Then I resigned from the directorship and started a new company. After five years a criminal case has been initiated against me under Section 138 of the NI Act. I was astonished to see that the date mentioned on the cheque is just four months before. How does it possible that I have committed an offence when there is no relation between me and that company? Sir, please help me to settle this criminal case?
Asked from: Bihar
The directors of a company can be vicariously liable if they were responsible for the day-to-day business or affairs of the company. If, in their capacity as a director, they issued a cheque to discharge a financial liability of the company, they can be held responsible for the bounce of the cheque.
However, it is crucial for the complainant to establish this vicarious liability in the complaint. Without demonstrating how the director is accountable for the dishonour of the cheque, a complaint filed under Section 138 of the Negotiable Instruments Act may be subject to being quashed.
In the case of Monaben Ketanbhai Shah v. State of Gujarat (2004) 7 SCC 15, the Supreme Court observed that it is the complainant's responsibility to include essential allegations in the complaint to establish vicarious liability against the accused. The Court also noted that there is no presumption that every partner is aware of the transaction for criminal liability.
The accused has to establish the fact in his complaint that director (accused) was responsible for the firm's business at the time of the commission of offence. If the complainant makes and supports these necessary allegations in the complaint, then it is maintainable under the ambit of Section 141 NI Act.
Therefore, in the absence of specific allegations in the criminal complaint under Section 138 of the Negotiable Instruments Act (NI Act) regarding the accused's involvement in the issuance of the bounced cheque and their liability for the same within the scope of the company's operations, the High Court may quash such a complaint under Section 482 of the Code of Criminal Procedure.
Section 141 of the Negotiable Instruments Act (N.I. Act) specifies that individuals who were in charge of overseeing the affairs or operations of a company at the time of the offence shall be held accountable and prosecuted under Section 138 of the N.I. Act. However, an exception is provided: if the offence occurred without their knowledge or despite taking all necessary precautions, they would not be held liable.
Based on the facts of the case, it seems that on the date mentioned on the cheque, you had already resigned from the position of director and had no association with the company for a significant period preceding the issuance of the cheque.
This fact itself proves that you cannot be held responsible for the issuance of that cheque. In the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. (2005) 8 SCC 89, the Supreme Court highlighted the importance of including necessary averments in a complaint before subjecting a person to criminal proceedings.
The Court emphasised that a clear case must be outlined in the complaint against the individual sought to be held liable. Specifically, Section 141 of the Act sets forth the requirements for establishing liability under the provision. It is imperative to clearly demonstrate that the respondent meets the criteria outlined in Section 141.
Based on the judgment of the Supreme Court in S.M.S. Pharmaceuticals (supra), it is indeed mandatory for the complainant to establish that you were responsible for issuing the cheque. Given that you had resigned from the company well before the date of issuance of the cheque, you cannot be held liable under Section 138 of the Negotiable Instruments Act. Furthermore, since you had disassociated yourself from the company's functions for the past five years, you are not vicariously liable for the offense committed.
In light of these circumstances, it is advisable to file a petition in the High Court under Section 482 of the Criminal Procedure Code (CrPC) for the quashing of this false and baseless criminal case. Your dissociation from the company for the past five years serves as solid evidence to prove your innocence. The criminal complaint fails to meet the essential ingredients of Section 141 of the Negotiable Instruments Act. Therefore, the High Court is likely to quash this case. For more legal help please visit Kanoon India.
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A woman's friend sexually harassed her by kissing and hugging. He did that act against her will. Thereafter the victim felt bad and decided to take legal action against that person. That act amounts to sexual harassment and punishable under Section 354A of the Indian Penal Code. Victim should lodge an FIR against the miscreant because he has committed offence by explicit sexual overture.
He was my friend. I went to the market with him. After the market, He asked me to drop home. I also said fine. But, Then, When he was going back home. He first hugged me. Until then, It was okay, But, Then he kissed me on my forehead, I got uncomfortable and then he tried to kiss me on the lips. He unfortunately kissed me. For that instance I was not in my senses about what had just happened. Then, I slapped him and tried to push him. But! He kissed me again. I shouldn't let him inside my house. But, Now I'm feeling very dirty. I am thinking of taking legal action against him. What should I do?
Asked from: Rajasthan
Any individual who employs force against a woman with the intention or awareness that it will lead to the violation of her modesty is liable to face punishment. Your friend has committed offence of sexual harassment which is punishable under Section 354-A of the Indian Penal Code. Section 354-A of the Indian Penal Code (IPC) deals with the offense of sexual harassment.
This section covers a wide range of acts that constitute sexual harassment, including but not limited to physical contact and advances involving unwelcome and explicit sexual overtures. It also encompasses making sexually coloured remarks, forcibly showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
Unwelcome and explicit sexual overtures refer to advances or actions of a sexual nature that are not desired or consented to by the recipient. These can include:
- Unwanted physical contact or touching of a sexual nature.
- Making sexual comments, jokes, or remarks that are inappropriate or offensive.
- Sending explicit messages or images without consent.
- Making suggestive gestures or movements.
- Displaying or sharing pornography without consent.
- Engaging in sexually suggestive behavior or innuendos.
In essence, any behavior or communication of a sexual nature that is not welcomed or solicited by the other person can be considered an unwelcome and explicit sexual overture. Such actions can be forms of harassment and are often considered inappropriate and offensive.
In cases related to sexual harassment under Section 354-A of the Indian Penal Code (IPC), consent is indeed a material factor. If the victim did not provide consent or if the behavior was unwelcome, it strengthens the case for sexual harassment. The law recognizes that consent is crucial in any interaction of a sexual nature, and absence of consent or coercion is a key element in defining acts as harassment.
Hugging itself is not inherently a sexual overture. It can be a gesture of affection, comfort, or friendship between consenting individuals. However, whether a hug constitutes a sexual overture depends on the context, intent, and consent of the parties involved.
If a hug is initiated without consent, or if it is accompanied by inappropriate touching or suggestive behavior, it shall be considered a form of sexual overture and may be perceived as unwelcome or harassing. In such cases, the nature of the hug and the intentions behind it would determine whether it crosses the line into sexual misconduct.
You should lodge first information report against your friend for the offence of sexual harassment (Section 354A IPC) because he has harassed you sexually without your consent. For more legal help please visit Kanoon India.
