The petitioner in this case was convicted by the Stationary Sub Magistrate, Vridhachalam, for an offence under S. 498 I. P. C. and sentenced to a fine of Rs. 200, and this was confirmed in appeal by the Sub Divisional Magistrate, Ulundurpet.
The facts are these: P.W 1, the complainant in this case married C. W. 1, on 1-7-1946. They seem to have lived amicably for about three years. On 30-7-1949, C.W 1's father and her aunt, that is her father's sister, both came to the village of P.W 1 and took C.W 1 to Vridhachalam for Adipuram festival, promising to send her back, in 2 or 3 days. But she never came back. Enquiries instituted by P. W. 1 revealed that she was living with the accused in a village called Eranji in Kallakurichi taluk. P.W 1 thereupon instituted a complaint against the wife (C.W 1), her father and the accused for an offence under S. 498 I.P.C and for an offence under S. 379 I.P.C alleging that the jewels were taken away. The Magistrate referred the matter under S. 202, Criminal Procedure Code and the police report was that no case under S. 379 I.P.C has been made out, though a case under S. 498 I.P.C has been made out. The Magistrate took the case on file against the accused only and the accused was tried and convicted as aforesaid.
A number of witnesses were examined. But it is enough to refer only to the evidence of four witnesses, viz. P.Ws 3, 4, 5 and 7, who are the material witnesses in respect of this offence. P. W. 5 is a jutka driver. His evidence is that on the day of the Adipuram festival, which was on 30-7-1949, he saw C. W. 1 and the accused at the Rajeswari bus stand and he took them both to the Railway station, and that C. W. 1 hesitated to get into the jutka expressing concern about the future consequences, if her husband came to know of it. But the accused prevailed upon her and both got into the jutka and went to the Vridhachalam station. But they missed the train and the party wanted to go to the next village called Mangalampet to stay there for the night. He took them and left them there. Before going to the station, the jutka in which these two people were travelling got stuck up in front of the house of P.W 7, the village head man of Vridhachalam, who then saw both C. W. 1 and the accused sitting close by in such a manner as to arouse suspicion. He knew both C. W. 1 as well as the accused and it was he who gave ultimately information to the husband P. W. 1, when he was making enquiries about his wife. P. W. 4 is the village headman of Agaram. He saw both C. W. 1 and the accused at Mangalampet. He knew C. W. 1 as the wife of P. W. 1 and he identified the accused as the person seen with her that night. P. W. 3 is a school teacher at Eranji. He speaks to the fact that the accused and C. W. 1 were seen in the shed opposite to his house. This is the main evidence on which the accused, is convicted of having taken C. W. 1 from her husband P. W. 1. It is necessary to mention here two important documents, Exs. P. 1 and P. 2. Ex, P. 1 is the notice issued by C. W. 1 to her husband in which she has stated that on account of ill-treatment meted out to her by him, she has left him and that he may take steps for divorce. She has stated therein that so far as she was concerned, she considered her marriage as cancelled. She also accused him of having taken her jewels worth thousand rupees and states that she does not propose to live with him any more. Ex. P. 2 is a deed of release executed by her on the 24th November 1949 and it was registered on the 25th. In that deed she states that her marriage with him was without her consent, and that as she was not able to live amicably with him, she went in search of the accused and that she was living with him. She further states that she does not claim any maintenance as she has taken away the jewels in lieu of maintenance.
An attempt was made to show that this document (Ex. P. 2) was extracted from her by coercion with the aid of the police. But this has been given the lie by the Sub-Registrar, who was examined as a court witness. He speaks to the fact that there was no police or any one at the time she came to register the document, that she herself registered it willingly and that P. W. 1. was not even present at the time.
The evidence therefore establishes the fact that the woman left her husband on 30th July for the apparent purpose of attending the Adipuram festival, but that on that day she got into a jutka with the accused and went to Mangalampet and ultimately to the village of the accused, and she was living with him. Assuming for a moment that the evidence of P. W. 5 may be exaggerated a little with regard to the persuasion, the fact remains, as spoken to by P.W 7, against whom nothing could be said, that both of them were travelling in a jutka on the day of the Adipuram festival.
The question is whether, in these circumstances, the accused can be said to have taken C.W 1 from her husband. It is contended by Mr. Gopalaswami that this is a case in which the woman left her husband of her own free will without any blandishments or allurements held out by the accused and that she has voluntarily come to live with the accused, and the accused therefore cannot be said to have taken C.W 1 from her husband. He further contends that unless it is proved that the accused has done something which induced D. W. 1 to come away with him, he cannot be found guilty of the offence under S. 498 I.P.C and that in this case there is nothing to indicate that he did anything at all. In support of his contention he relies upon the following decisions, viz, Queen v. Pochun Chung 2 Sutherland Weekly Reporter Criminal Ruling 35, Emperor v. Ewaz Ali 1915 37 All 624, Mahadeo Rama…Accused Applicant; v. Emperor 1943 A.I.R Bom. 179 and Bhopan…Applicant; v. Chhotey…Opposite Party. 1949 A.I.R All. 23.
In Queen v. Pochun Chung the learned Judges were considering a case both under Ss. 497 and 498 I.P.C The learned Judges seem to think that a person having been convicted under s. 497 I.P.C need not be convicted also under s. 498 I.P.C Glover J. observes that s. 498 provides for “enticing” for the purpose of illicit intercourse and that, even if proved, the charge is included in the more serious crime of s. 497, and dealing with this the learned Judge adds: “I say ‘even if proved’, because the women herself declares that, being deserted by her husband she went to the prisoner's house of her own accord.” The learned judges refer to the desertion other husband, the desire of the prisoner to marry the woman, and the very loose way in which marriages are conducted amongst persons of the prisoner's caste. But they do not seem to consider the question of ‘taking’. Perhaps that was not raised and argued. The decision cannot therefore be an authority for what amounts to ‘taking’ within the meaning of s. 498 I.P.C
The case in Emperor v. Ewaz Ali is one under Ss. 366 and 372 I.P.C The facts were:
A low caste girl left her lawful guardian of her own free will and subsequently met the accused Ewaz Ali and lived with him for some time. Later he made her over to certain persons. The learned Judge observes: “In the present case the girl had voluntarily left the keeping of her guardian with intention to remain out of that keeping, and accused Ewaz Ali, probably with full knowledge of the circumstances, gave her a home and finally transferred her to the keeping of Hira Lal, etc.” The learned Judge quotes observations from another judgment that “on the admitted facts the leaving and the removal out of the keeping of the lawful guardian was the act of the girl herself long before she met the accused.” The judgment proceeds on the footing that, if the girl by her own act leaves out of the keeping of the guardian and comes into the custody of another, there will be no enticement. I will show presently that the girl's consent is immaterial. It is not open to a minor in law to abandon her guardian. I do not agree with the view expressed in this judgment that when the minor leaves the guardian of her own accord and when she comes into the custody of some other person, that will not amount to taking out of the lawful guardian at all.
In Mahadeo Rama…Accused Applicant; v. Emperor it was held that to bring S. 498 into operation, there must be some influence operating on the woman, or co-operating with her inclination at the time the final step is taken, which causes a severance of the woman from her husband for the purpose of causing such step to be taken. The learned Judges no doubt observe that “it is not enough to say that the wife could not have left her husband, unless she had somewhere else to go, and that it must be assumed, therefore, that the accused offered her a home, if she would leave her husband”. With great respect to the learned Judges, I should say that the influence which operated on the woman to leave her home was undoubtedly the assurance that she will be given protection, if she comes to this man's house. That must have co-operated with her inclination to leave the house. It is unnecessary, in my opinion, as I will show by the other decisions, that the accused must hold out any overt act from which influence can be inferred.
Bhopan…Applicant; v. Chhotey…Opposite Party. is a case where the question of detention under S. 498 was considered. It was held that once the free will of the woman is established, any help or assistance tendered by the accused cannot be regarded to constitute detention. Providing maintenance, affording shelter and rendering assistance in various ways are no doubt matters which are relevant as evidence of allurement and inducement but they are by no means conclusive. The problem that has to be ultimately determined in every case always remains, whether the woman was a free agent or whether she was being influenced by the accused. With great respect to the learned Judge, I must say, as pointed out earlier, that her consent or attitude in the matter is absolutely immaterial. A woman's free will, or her being a free agent, or walking out of her house of her own accod are absolutely irrelevant and immaterial for the offence under s. 498.
As against the above decisions, we have decisions of our High Court and they are Regina v. Kumarasami 2 M.H.C.R 331 and In re Sundara Dass Tevan6, the latter of which is followed in 7 Madras Jurist 133. In Regina v. Kumarasami the facts were; The prisoner and one Ramaswamy, who were neighbours of the prosecutor, met his wife Agilandam in the street, she having left her husband's house to fetch water. The three went together by railway to Vellore and Arcot, where the prisoner and Agilandam remained about 12 days and where sexual intercourse took place between them. But Ramaswamy swore and the jury found as a fact that Agilandam asked the prisoner to allow her to go with him, that all the solicitation proceeded from her and that the prisoner for some time refused to yeild to her request. Dealing with the above facts, Scotland, C.J says:
“I do not think that the facts found of the woman having been the tempter and the prisoner in the first instance reluctant to yield to her solicitations can render the case different from one in which the advance and solicitation are on the part of the man and the woman complies and willingly leaves her husband and cohabits with the man. All that can be said is that her consent is given under circumstances of greater profligacy in the one case than in the other. In this case, therefore, it seems to me the real point for consideration is simply whether the wife's willingness and consent, evidenced by her solicitation of the prisoner and the circumstances under which she left her husband and remained absent from him, afford any defence to the prisoner.
Now the section and the preceding section 497 were evidently intended for the protection of husbands who alone can institute prosecutions for offences under them. It is the taking or enticing of the wife from the husband or the person having the care of her on behalf of the husband for the illicit purpose that constitutes the offence. If whilst the wife is living with her husband a man knowingly goes away with her in such a way as to deprive the husband of his control over her with the intent stated in the section, that, I think, is a taking from the husband within the meaning of the section. The wife's complicity in the transaction is no more material on a charge under this section than it is on a charge of adultery.”
This decision is approved and followed in In re Sundara. Dass Tevan where the learned Judges were really dealing with detention.
John D. Mayne in his book on Criminal Law of India, 4th Edition dealing with this section says that “The same would be the result if she left her husband's house and went of her own accord to the accused's house and he allowed her to live with him as his wife. Such allowing would be treated as constructive taking, as she would not have been emboldened to leave her husband's house and remove herself from his control but for the asylum offered by the accused.” He extracts this from certain observations in 7 Madras Jurist 133.
In In re Abdul Sathar7 Srinivasa Aiyangar, J, held that where the evidence disclosed that, but for something which the accused consented to do and did ultimately, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purposes of s. 363 Indian Penal Code.
In Akkiraju Sanyasi v. King 1949 M.W.N 278 Govinda Menon, J. has held that it would amount to taking in the following circumstances. Though the parties belonged to a village in Vizagapatnam District, the petitioner and the woman were seen, three months later, in a village in the West Godavari District, and she was living with him in a distant place even at the time when the petition was filed. From these facts, the only inference, acceding to the learned Judge, is that it was a result of some action taken by the petitioner that the woman went with him.
In Debaprasad v. The King 1950 A.I.R Cal. 406 it was held that the mere fact that a minor leaves the protection of her guardian does not put her out of the guardian's keeping and that if, however, it is proved that a minor had abandoned her guardian with no intention of returning back, she cannot, thereafter, be deemed to continue in the keeping of the guardian. With great respect, I must say that the earlier observation that “the mere fact that a minor leaves the protection of her guardian does not put her out of the guardian's keeping” is the correct position and that any amount of her abandoment of her guardian will not take her away in law from continuing to be in the keeping of the guardian.
It is clear from the Madras decisions, parti- cularly in Regina v. Kumaraswami, that if whilst the wife is living with her husband, a man knowingly goes away with her in such a way as to deprive the husband of his control over her with the intent stated in the section, that is a taking from the husband within the meaning of the section. With great respect to the decisions of the other High Courts, I should think the law is correctly stated in the above decision, and that decision is referred to and approved in In re Sundaradass Tevan. Regina v. Kumaraswamy is a Bench decision, and I feel bound by it. I may also express that my view is in accordance with the view expressed therein.
Mr. Gopalaswami contends that a more liberal interpretation must be put upon that section. That is, in a case where a woman is unwilling to live with her husband, may be even for good reasons, and she comes and lives with another person as husband and wife, the other person should not be held to have ‘taken’ the wife within the meaning of s. 498, I.P.C In my view, this section, is intended, as already stated, to protect the husband, and not intended for the benefit of the wife. The section does not admit of such an interpretation; nor, in my view, the interest of society require it.
On the facts of the case, I am satisfied that however much the wife was disinclined to live with the husband, it is certainly a case in which the woman left with the accused, because he was willing to take her and the offence, in my opinion, has been made out. The conviction is, therefore, correct. The lenience in the circumstances, is not excessive and is confirmed and the petition is dimissed.
N.T.RPetition dismissed.