Teach boys good conduct, don’t dictate women’s clothes, says Delhi High Court

The case arose from an incident on July 17, 2013, when the complainant was allegedly 17 years old. She claimed that the man had been stalking her, making sexually coloured remarks and touching her cheeks and hips. The high court, however, later held that the prosecution had failed to establish the complainant’s age for invoking the charge under the POCSO Act.

‘Women’s clothing no one’s concern’

The high court’s strongest observations came while examining questions put to the complainant about her clothing. “What a girl or woman chooses to wear is a matter of her personal choice. Neither her neighbours, nor society, nor the accused, nor counsel appearing in a court of law has any right to dictate her clothing. It is simply none of their concern,” Justice Sudha said.

Justice Chandrasekharan Sudha cautioned judicial officers that cross-examination is not an unrestricted licence to ‘insult, shame, intimidate or harass a witness’.

The court noted that the complainant had been questioned during cross-examination about objections to western clothes and whether she wore jeans and a top. Justice Sudha said the questions were not intended to test her truthfulness or impeach her credibility, but to “insult, shame and annoy her”.

The judge also said an advocate could not use the privilege of cross-examination “as a licence to humiliate a witness or attack her dignity”. The court further rejected the suggestion that the complainant’s clothing could affect the reliability of her evidence.

“The complainant may be wearing clothes not palatable or approved by the accused or the other residents. That is no ground to disbelieve or discard her testimony,” the court said.

‘Even woman of easy virtue is protected’

The judgment also addressed the suggestion that the complainant’s character could have any bearing on whether she was entitled to protection from harassment.

Justice Sudha said, “Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law.”

The court said that even assuming the complainant to be a woman of “easy virtue”, as was sought to be made out, her evidence could not simply be rejected.

‘Judges must stop humiliating questions’

Justice Sudha cautioned judicial officers that cross-examination, though a valuable right, is not an unrestricted licence to “insult, shame, intimidate or harass a witness”. She said judges must immediately stop irrelevant, indecent, scandalous or humiliating questions and cannot remain silent when a witness’s dignity is attacked under the guise of cross-examination.

The court said this duty is especially important when the witness is a child, a victim of sexual offence or otherwise vulnerable. “Judicial officers must ensure that court proceedings do not become a second site of trauma for the injured or witness,” Justice Sudha said, adding that questions about a woman’s clothing, character, lifestyle, religion or personal choices must not be permitted unless strictly relevant to the case.

HC overturns acquittal

On the sexual harassment allegation, the high court said that the core of the complainant’s version remained intact despite some discrepancies. It noted that her statement mentioned that the accused had touched her hips, while that allegation was absent from her first information statement and testimony. However, the court found her allegation on the touching of her cheeks to be consistent.

It held that the touching of the complainant’s cheeks, coupled with the comments attributed to the man, made out an offence under IPC Section 354A(1)(i) (unwelcome physical contact and advances involving explicit sexual overtures), and convicted him.

However, the POCSO charge was not sustained. The court said that the prosecution had failed to satisfactorily establish the complainant’s underage status because of deficiencies, including the delayed birth registration, the absence of the relevant register entry, and the required SDM order. It, therefore, held that the POCSO provisions could not be invoked.

The accused was directed to appear before the high court on August 12 for the hearing on sentence.