Chandra Bahadur Subba Vs State and Another

A.M. Bhattacharjee, J.@mdashHaving heard Mr. N. B. Kharga, learned Advo- cate for the accused-appellant, and the learned Advocate-General appearing for the State, both of whom have taken us through the entire record, we have no manner of doubt that the appeal must be allowed and the judgment and order under appeal must be set aside.

2. The accused-appellant has been convicted u/s 497, Indian Penal Code, for allegedly committing adultery with the woman said to be married to the complainant, and also u/s 498, Indian Penal Code, for allegedly detaining the said woman with intent to have illicit intercourse with her.

3. Both the Sections 497 and 498 form part of Chapter XX of the Indian Penal Code, which is headed as "Of Offences relating to Marriage" and the question of marriage, its facturn and legality, are of utmost importance in all cases under these Sections. The law on the point appears to be well-settled for about last hundred years since the decision of the Full Bench of the Calcutta High Court in Empress v. Pitambur Singh decided in ILR (1879) Cal 566 where Garth, C. J., delivering the judgment of the Full Bench, observed that "the marriage of the woman is essential element of the crime charged as the fact of illicit intercourse and the provisions of the Evidence Act (Section 50) seem to point out very plainly that where the marriage is an ingredient in the offence, as in bigamy, adultery and the enticing of married women, the fact of the marriage must be strictly proved in the regular way." The observations in this case apply equally to a case of adultery u/s 497, Indian Penal Code, as well as to enticing of married woman u/s 498, both of which require the same strict proof of marriage.

4. It is unfortunate that in this case the learned Sessions Judge has not properly dealt with this aspect. In our opinion, in cases of this kind, it is necessary for the complainant or some other person on his behalf to give strict proof of marriage in order to enable the Court to determine the question whether the marriage in fact did and in law could take place and whether the relationship of husband and wife did exist in fact and could exist in law at the relevant time.

5. The aforesaid Full Bench decision of the Calcutta High Court in Empress v. Pitambur Singh. ILR 1879 Cal 566 , has been referred to and relied on by the Supreme Court in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., and that goes to show that the law on the point is what was laid down in that century-old case.

6. In Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, the Supreme Court, in construing the expression "whoever .... marries" u/s 494, Indian Penal Code, has observed that "prima facie the expression ''whoever... marries'' must mean ''whoever... marries validly'' or ''whoever... marries and whose marriage is valid one''." If the expression "marries" u/s 494 Indian Penal Code should mean marrying legally and validly, the expression "wife" u/s 497 and Section 498, Indian Penal Code, should also mean legally and validly married wife and, therefore, in a prosecution under these Sections the factum as well 4s the legality and the validity of the marriage must be strictly proved beyond any reasonable doubt.

7. In the case at hand, the complainant is a Hindu belonging to the Bengali community and the alleged wife belongs to the Bhutia community and is a Roman Catholic Christian by faith. The alleged wife, figuring as the sole defence witness. has categorically asserted that he was not legally married to the complainant. The witnesses for the prosecution, including the complainant, have, however, stated that the complainant and the said woman were married according to Nepali custom and rites by applying some mixture of curd and rice on the foreheads of both. We have failed to understand how a Bengali Hindu could marry a Bhutia Christian woman according to the alleged customs and rites of the Nepalese, to which community neither of the parties belonged.

8. Mr. Kharga has referred us to a Division Bench decision of the Calcutta High Court in Swapna Mukherjee Vs. Basanta Ranjan Mukherjee and Others, where, in considering the question of the validity of a marriage in a case u/s 494. Indian Penal Code it has been observed that "there cannot be a valid form of marriage between an Indian Christian and a Hindu woman celebrated according to Hindu rites." We agree with this observation and hold that in this case it has not been proved that tike marriage between the complainant, a Bengali Hindu, and the alleged wife, a Bhutia Christian, could legally take place according to the rites or customs prevalent among the Nepalese. Obviously a marriage custom of one community cannot have any application unless the parties or at least one of them belong to that community.

9. The learned Advocate-General has referred us to a Single Bench decision of the Rangoon High Court in Anandaw v. Emperor AIR 1927 Rang 261 : 28 Cri LJ 868, where, in a case Under Sections 497/ 498, Indian Penal Code, it was held that from the fact that a man and woman lived together as man and wife, there was presumption that they were legally married, even though they belonged to castes or classes which ought not to intermarry. We are, however, clearly of opinion that the fact that a man and a woman lived together as man and wife for a long time and that the woman bore children and that they were or are usually treated by others as husband and wife are not evidence of any valid marriage to sustain a prosecution u/s 497 or Section 498 of the Indian Penal Code, particularly in view of the provisions of Section 50 of the Evidence Act. We have already noted that the view of the Full Bench of the Calcutta High Court in Empress v. Pitambur Singh ILR (1879) Cal 566 , has been relied on by the Supreme Court in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., , and that being so, the aforesaid Rangoon decision can no longer be regarded to be good law.

10. The learned Advocate-General has, however, urged that DW 1, the woman concerned, admitted that she was married to the complainant, when sihe was produced in Court in execution of a search warrant. It is no doubt true that DW 1, in her deposition before the trial Court, has also admitted in cross-examination to, have made such statement. We are, however, of opinion that the mere statement of the complainant or that of the woman concerned that they are married to each other is not sufficient to sustain a prosecution either u/s 497 of the Indian Penal Code or Section 498 of the Indian Penal Code and that notwithstanding such admission, marriage between the parties must be strictly proved to (have taken place according to law. It has been held by the Allahabad High Court in the Division Bench decision in Queen Empress v. Dal Singh ILR (1898) All 166 that Courts trying such cases should require some better evidence of the marriage than the mere statements of the complainant and the woman. This view has again been reiterated by the Allahabad High Court in Buddhu v. Emperor AIR 1920 All 175 : 21 Cri LJ 368.

11. The learned Advocate-General has also urged that the accused-appellant has also admitted in his statement before the Court that he knew the complainant and the woman concerned to be living as husband and wife and that, therefore, it was no longer necessary to adduce any strict proof of marriage over and above the aforesaid admission of the accused. We are, however, of opinion that in a prosecution like this, the question of marriage must be proved strictly and that any inference from such an admission on behalf of the accused will not avail the prosecution if they fail to prove strictly the marriage between the complainant and the woman. This is also the view of the Patna High Court as will appear from the decision in Ganga Patra Vs. Emperor, , and we agree wIth the said view. After all, any admission as aforesaid may only prove the factum of marriage but, as we have already pointed out, in a case like this, it must be proved that the marriage between the parties not only did take place in accordance with the requirement of custom or law applicable to the parties but also could take place under the law, and reference in this connection may be made to the Division Bench judgment of the Calcutta High Court in Akshay Kumar Maiti and Others Vs. Emperor, . Even if the factum of a marriage is admitted by the parties, such admission cannot still prove or be allowed to prove a marriage, if it otherwise appears that the marriage could not take place in law because of some legal prohibition or infirmity. We have already pointed out that in this case it has not been proved that the marriage between the complainant, a Bengali Hindu, and the alleged wife, a Bhutia Christian, could legally take place according to the rites customs prevalent among the Nepalese, as alleged, and that being so, any such admission as aforesaid is entirely insufficient to sustain the present prosecution where it must be proved that the marriage between the complainant and the woman concerned could and did take place under and in accordance with the law.

12. We, therefore, allow the appeal and set aside the judgment and order of the learned Sessions Judge and acquit the accused-appellant. The accused-appellant is on bail and shall therefore, be discharged from the bail bond.

Manmohan Singh Gujral, C.J.

13. I agree.