Why J&K HC's Stance On Husband's Assault Towards Wife Raises Concerns

In a questionable judgement, the High Court of Jammu and Kashmir and Ladakh said that slapping a woman in public doesn't attract an offense under Section 354 of the IPC, which criminalises any attempt to outrage a woman's modesty. The court was hearing a petition filed by a man opposing the issuance of process by a trial court for slapping and injuring his wife in public. 

As per the reports, the couple was facing certain marital disputes. The wife claimed that when she arrived at the family court to resolve one such dispute, the husband slapped her and injured her publicly. She filed a complaint against the husband under Sections 323 and 354 of the IPC. The trial court issued a process against the husband. However, the husband challenged this order in the high court.

The husband challenged the order on the grounds that the trial court cannot book him under Section 354 because the offences mentioned are not covered by the section. 

On the other hand, the counsel for the wife too conceded this but also added that the offence provokes Section 323, which criminalises an attempt to voluntarily cause harm.

The Court's Judgement 

After listening to the case, Justice Rajnesh Oswal observed that no offence was made under Section 354 when the husband slapped the wife in public. However, the court said that the husband must be booked under Section 323.

This Court is of the considered view that order dated March 30, 2022, so far as issuance of process for commission of offence under Section 354 IPC is considered, the same is not sustainable in the eyes of law and, accordingly, the same is quashed, whereas the order to the extent of issuance of process under Section 323 IPC is upheld," the order said. 

Why is this verdict problematic? 

The judgement first undermines the risk that marital disputes can cause women. By saying that slapping a wife in public doesn't outrage her modesty, the court is encouraging such behaviours and brushing away the fear of the law—the only weapon that arms women and stops men from committing crimes. Any kind of physical violence, be it a single slap, is not permissible in the context of marriage. When a man slaps a woman, he assumes that he has power over his wife because of his gender. He lets the years of internalisation that women are supposed to be dominated by men take the front seat. And if women do not oppose it, sometimes because of their patriarchal mindset and sometimes because of the lack of legal recourse, violent behaviours within marriage will be normalised. 

We are living in an era when mental cruelty in marriage is a criminal offence. How does it make sense to decriminalize slapping? How can slapping not outrage a woman's modesty when we are fighting for equality in every sector? When women are trying to move up the ladder of social hierarchies, why are certain systems trying to push them back? 

Counting the Act of a Husband Slapping his Wife under a General Law 

Of course, the court booked the husband under Section 323, but it still doesn't do justice to women.

Section 323 IPC punishment stipulates that an individual convicted of voluntarily causing hurt can face imprisonment of up to one year, a fine of up to one thousand rupees, or both, whereas Section 354 IPC deals with assault or criminal force with the intention to outrage a woman's modesty.

Not imposing Section 354 on the husband clearly dismisses the seriousness of domestic violence. We cannot forget that the man and the woman were married, and the violence erupted out of the marital discord. It was not just a random man hitting a woman. The man was known to the woman and was expected to be her life partner. 

So the act of slapping has provoked two offenses: a man trying to assault a woman, and a husband dominating and violating his wife. A slap within marriage is not just an act done in a moment. It carries the burden of gender power play and marital discord, under which the woman has been reeling for days. The slap just redefines the boundaries of marital discord—that there is no boundary when a man tries to impose his manhood. 

Hence, a slap within marriage, that too in public, cannot just be about a random person trying to voluntarily hurt someone. It involves the politics of gender, family, and power, which, if ignored, will spread like a fungus.

Views expressed are the author's own.