The Jammu & Kashmir and Ladakh High Court held that slapping wife in public will not attract the offense of outraging woman's modesty under Section 354 IPC based on the complaint, but it will come under Section 323 IPC for physical assault.

The petitioner (husband of respondent) had filed a petition to quash the proceedings of a criminal complaint filed by the respondent against the petitioner. The complaint alleged that the petitioner had assaulted and slapped the respondent in public. The trial court had issued process against the petitioner for offenses under Sections 323 and 354 of the Indian Penal Code (IPC).

A Bench of Justice Rajnesh Oswal held, “from the averments made in the complaint, no offence under Section 354 IPC is made out but offence under Section 323 IPC is made out as the respondent has categorically stated that she was thrashed and slapped in public gaze by the petitioner when she had come to attend the proceedings.

Advocate Umar Mir appeared for the Petitioner and Advocate Showkat Ali Khan appeared for the Respondent.

The petitioner contested that the process under Section 354 IPC was not justified as the allegations didn't constitute that offense. Additionally, it was claimed that the trial court had not recorded the statement of any witness, contrary to what was mentioned in the order.

The Court found that the offense under Section 354 IPC was not made out based on the complaint. However, the offense under Section 323 IPC was evident from the complaint as it alleged physical assault.

The Court noted that the complainant's statement was indeed recorded before the matter was referred for investigation. The Court said, “The trial court record reveals that before the matter was referred for investigation under Section 202 of Cr. P. C, the statement of the complainant was recorded by the learned Magistrate, as such, there is no force in the contention raised by the petitioner.”

As a result, the Court quashed the issuance of process under Section 354 IPC but upheld the same under Section 323 IPC.

The petition was disposed of, with instructions for the trial court to proceed with the proceedings accordingly. The trial court was also directed to be informed of this decision for compliance.

Cause Title: Mehboob Ali v. Nisar Fatima

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