Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ. while disposing off an application, held that,
“To call a woman, even if she is one’s own wife a prostitute and to call her that she earns money by indulging in prostitution amounts to insulting the modesty of a woman.”
Facts pertaining to the present case are that the respondent 2 was married to the petitioner who never treated her well. Petitioner used to beat and call respondent 2 a prostitute.
Further it was alleged that petitioner had married respondent 2 for the sake of others as the petitioner was a homosexual.
Petitioner had sent Whatsapp message to respondent 2 calling her a prostitute and that she earned money by doing business of prostitution. Further it was also alleged that the petitioner had made phone calls to his relatives also. Thus, an FIR was filed against the petitioner under Sections 294, 500, 506 and 507 of the Penal Code, 1860.
Counsel for the petitioner, Shambhuraje V. Deshmukh submitted that the offence under Section 294 of IPC would only be attracted if the obscene words are uttered in public place and that theobscene words should be of such a nature as to cause annoyance to others.
Adding to the above, he submitted that Whatsapp messages are personal messages and sending of personal messages on personal account of Whatsapp wuld not amount to utterance of words at public place. Alleged messages were not sent on Whatsapp group.
A.P.P. for respondent State submitted that the messages sent on personal account on WhatsApp, amounts to utterance of obscene words in public place. Therefore, ofence under Section 294 of the IPC is made out.
Section 294 of the I.P.C. requires that a) act done must be an obscene act and it must be done in any public place. Sub Section (b) of Section 294 of I.P.C. can be pressed into service if any one sings, recites or utters any word, song, ballad words, near any public place and Section 294 further requires that such obscene acts, song, ballad or utterance of words cause annoyance to others.
Thus, in the present case, Whatsapp messages sent on personal accounts are strictly personal. Nobody has access to such messages except the sender and the receiver.
Literature available on the WhatsApp website, makes it abundantly clearly that such types of messages are strictly personal messages and nobody even the WhatsApp can have access to these messages which means nobody except the sender and the recipient can read the messages.
Thus, Whatsapp cannot be a public place if messages are exchanged on personal accounts of two persons.
Therefore, sending the personal messages on WhatsApp will not amount to utterance of obscene words in public place. Therefore, Section 294 of the IPC cannot be invoked. [Nivrutti v. State of Maharashtra, 2020 SCC OnLine Bom 410, decided on 11-03-2020]