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TMI Blog1958 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... e police station after he was informed by Shakoor Mian (P. W. 4) that he had seen the complainant s wife at the house of the two appellants. The complainant then went to the house of the appellants along with Shakoor Mian (P. W. 4), Musa Mian (P. W. 2) and Suleman Mian (P. W. 3); they saw the woman in the house of the appellants whereupon the complainant asked appellant No. I Alamgir to let his wife go with him but appellant No. I told him that he had married her and appellant No. 2 warned him to get away and said that, if he persisted, he would be driven out. This story is corroborated by the three companions of the complainant. The appellants denied the charge. They pleaded that the complainant had not validly married -the woman and that she had not been detained by them. According to them, the woman was tired of living with the complainant and that she had voluntarily and of her free will come to stay with the appellants. The learned trial magistrate believed the prosecution evidence, rejected the pleas raised by the defence, convicted the appellants of the charge framed and sentenced them to undergo simple imprisonment for two months each. This older of conviction and sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe. The gist of the offence under s. 498 appears to be the deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her. In this connection it would be material to compare and contrast the provisions of s. 498 with those of s. 366 of the Code. Section 366 deals with cases where the woman kidnapped or abducted is an unwilling party and does not respond to the criminal intention of the accused. In these cases the accused intends to compel the victim afterwards to marry any person against her will or to force or seduce her to illicit intercourse. In other words s. 366 is intended to protect women from such abduction or kidnapping. If it is shown that the woman who is alleged to have been abducted or kidnapped is a major and gave her free consent to such abduction or kidnapping, it may prima facie be a good defence to a charge under s. 366. On the other hand s. 498 is intended to protect not the rights of the wife but those of her husband; and so prima facie the consent of the wife to deprive her husband of his proper control over her would not be material. It is the infringement of the rights of the husband coupl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different kinds of cases are contemplated by the section. A woman may be taken away or enticed away or concealed or detained. There is no doubt that when the latter part of the section refers to any such woman, it does not mean any woman who is taken or enticed away as described in the first part, but it refers to any woman who is and whom the offender knows or has reason to believe to be the wife of any other man. It is not seriously disputed that in the first three classes of cases the consent of the woman would not matter if it is shown that the said consent is induced or encouraged by the offender by words or acts or otherwise. Whether or not any influence proceeding from the offender has operated on the mind of the woman or has co-operated with or encouraged her inclimations would always be a question of fact. If, on evidence, the court is satisfied that the act of the woman in leaving her husband was caused either by the influence of allurement or blandishments proceeding from the offender, that may be enough to bring his case within either of the three classes of cases mentioned by s. 498. In this connection, when the consent or the free will of the woman is relied upon in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here can be no doubt that he intended to have illicit sexual intercourse with her. That is the effect of concurrent findings of fact recorded against appellant No. I ; and it would not be open to him to challenge their correctness or propriety in the present appeal. This section has been the subject-matter of several judicial decisions and it appears that, except for a few notes of dissent, there is a fair amount of unanimity of judicial opinion in favour of the construction which we feel inclined to place on the word detains in s. 498. It is, however, true that the relevant decisions, to some of which we would presently refer disclose a striking difference of approach in dealing with questions of fact. It would appear that though the relevant portion of the section has received the same construction in dealing with same or similar facts, the learned judges have differed in their conclusion as to whether the accused person had been guilty of conduct which would bring his case within s. 498. This, however, is a difference in the method of approaching evidence and assessing its effects. It would be futile and even improper to consider whether a particular conclusion drawn from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the facts, however, it appeared to the trial court that the conduct of the accused did not bring his case within the mischief of s. 498. The wife of the complainant had been taken away by her brother and she was subsequently married by natra marriage to the accused. The complainant learnt about this incident and went to the accused to ask him to allow his wife to go back to him. On seeing the complainant and his friends the accused came out with a dharia and threatened the complainant and his companions who then returned to their village. The conduct of the accused when the complainant approached him, it was said, cannot necessarily indicate that the accused had detained the woman. This was the view taken by the trial court who acquitted the accused ; on appeal the High Court saw no reason to differ and so the order of acquittal was confirmed by it. Divatia, J., who delivered the concurring judgment apparently differed from Broomfield, J., in regard to the construction of the word detains . He agreed that the scheme of s. 498 showed that though the woman may be perfectly willing to go with the man the offence of taking or enticing away would occur because it simply consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used. In Mabarak Sheikh v. Ahmed Newaz (1939) 43 C.W.N. 980) the same High Court held that there can be no detention of a woman within the meaning of s. 498, second part, if the woman is an absolutely free agent to go away from the person charged whenever she likes. It appears that the learned judges were inclined to hold that there could be no detention if the woman was an absolutely free agent to go away from the person charged whenever she likes to do so; and in support of this view they have referred to some of the decisions which we have already considered. With respect, it appears that the effect of the earlier decisions has not been properly considered and the findings of fact recorded in the said decisions are assumed to lend colour to, and modify, the construction of the section adopted by them. Besides, the relevant observations appear to be obiter because, on the facts, it was found in this case that the woman was not a free agent and so the charge against the accused under s. 498 was held established. In Bipad Bhanjan Sarkar v. Emperor (I.L.R. [1940] 2 Cal. 93), Henderson and Khundkar, JJ., have considered the word detains in the same manner as we have done. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned and this again implies unwillingness on her part. Detention cannot include persuasion by means of blandishments or similar inducements which would leave the woman free to go if she wished . The learned judges also added that they were of the opinion that the word detains cannot be reasonably construed as having reference to the husband. In our opinion, these observations do not correctly represent the true purport and effect of the provisions of s. 498. The position, therefore, is that, on the findings of fact made by the lower courts against appellant No. I it must be held that he has been rightly convicted under s. 498. That takes us to the question of sentence imposed on him by the High Court in its revisional jurisdiction. We are satisfied that the High Court was not justified in directing appellant No. I to suffer rigorous imprisonment for six months by way of enhancement of the sentence. It is unnecessary to emphasise that the question of sentence is normally in the discretion of the trial judge. It is for the trial judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a given case. The High Court undoubte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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