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Emperor Vs. Mahiji Fula - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 367 of 1933
Judge
Reported inAIR1933Bom489; (1933)35BOMLR1046; 147Ind.Cas.43
AppellantEmperor
RespondentMahiji Fula
DispositionAppeal dismissed
Excerpt:
.....given away in natra marriage to the accused who lived in another village. the woman lived in the accused's house openly and freely as his wife. the accused having been charged with detaining a married woman, an offence punishable under section 498 of the indian penal code:-;that the accused had not committed the offence with which he was charged. - - - it need hardly be said-that unless the prosecution proves that the appellant had detained nani with the knowledge that she might be subjected to illicit intercourse, the case against him must fail. 20):-the words of the section 'conceals or detains' may be and were, we think, intended to be applied to the enticing or inducing a wife to withhold or conceal herself from her husband, and assisting her to do so as well as to physical..........the case against him must fail. there is absolutely nothing on record to show that the woman nani had been detained in the house of the appellant against her wish. there is nothing to show that she was not willing to go to the house of the appellant and live there as his wife. there is absolutely no restraint placed upon her in the appellant's house, and she moves about freely, going out to fetch water or to do any other work. thus the important ingredient which is necessary for the establishment of the offence under section 498 is missing in this case.5. the learned government pleader who has argued this appeal on behalf of the crown has not seriously contested the findings of the sessions judge on the facts, and having perused the evidence ourselves we think those findings.....
Judgment:

Broomfield, J.

1. This is an appeal by the Government of Bombay in a case in which one Mahiji Fula was convicted by the Resident Magistrate, First Class, Borsad, of an offence under Section 498 of the Indian Penal Code, but was acquitted on appeal by the Sessions Judge of Kaira.

2. The relevant facts are as follows. The complainant Shana Jhina of Amiad in Borsad taluka had a young wife named Nani. In June or July 1932 the husband left his village and went to a place in the Baroda State to earn his living, leaving his wife at home with his mother. While he was away, Kala Ranchhod, a brother of Nani, came to the complainant's house and took the girl away, and it appears that he afterwards married her by natra marriage to the accused, Mahiji Fula, who belongs to the village of Dehmi. The complainant was informed of what had occurred, and he went to Dehmi in the company of two other persons and found Nani in the house of the accused. It is alleged that when he saw them the accused came out of the house with a dharia and threatened them, whereupon they went away and returned to Amiad. It was not until October 20, 1932, that Shana Jhina filed his complaint. His explanation is that he had no money to do it before, but as no money was required, that does not appear to be true. The complaint was originally against both Kala Ranchhod and Mahiji Fula and was under Sections 497 and 498 of the Indian Penal Code, but the case against Kala Ranchhod was compromised, and, for some reason, which is by no means clear to me, the learned Magistrate considered that the only charge which could stand against Mahiji Fula was one under Section 498. That section prescribes the punishment for any person who takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman.

3. The Magistrate found that the accused had detained Bai Nani with the knowledge that she was the wife of the complainant and that he had so detained her with intent that she might have illicit intercourse with him. He accordingly convicted him and sentenced him to rigorous imprisonment for six months and a fine of Rs. 30.

4. This conviction and sentence the Sessions Judge set aside in appeal His judgment is a very short one and I cite the material portion, stating first by way of premise that the prosecution case is not that the accused took or enticed away the woman, nor that he concealed her in the house, but simply that he detained her with the intent specified in the section, The learned Judge says:-

It need hardly be said-that unless the prosecution proves that the appellant had detained Nani with the knowledge that she might be subjected to illicit intercourse, the case against him must fail. There is absolutely nothing on record to show that the woman Nani had been detained in the house of the appellant against her wish. There is nothing to show that she was not willing to go to the house of the appellant and live there as his wife. There is absolutely no restraint placed upon her in the appellant's house, and she moves about freely, going out to fetch water or to do any other work. Thus the important ingredient which is necessary for the establishment of the offence under Section 498 is missing in this case.

5. The learned Government Pleader who has argued this appeal on behalf of the Crown has not seriously contested the findings of the Sessions Judge on the facts, and having perused the evidence ourselves we think those findings must be accepted. There is no evidence of any sort of restraint being put upon Nani, and, although it is a little difficult to be certain as to the facts of a case in which the woman herself has not even been produced as a witness, it does appear to be the case that she was a free agent and stayed in the accused's house without any sort of compulsion and because she wished to do so. The only question that has to be considered, therefore, in this appeal is whether in the circumstances stated by the learned Sessions Judge the accused can be said to have detained Nani.

6. In that connection we have been referred to a number of authorities. In the case of Sundara Das Tevan (1868) 4 M.H.C.R. 20 the Court expressed the opinion that physical constraint of the wife is not an essential of the offence made punishable by Section 498 (p. 20):-

The words of the section 'conceals or detains' may be and were, we think, intended to be applied to the enticing or inducing a wife to withhold or conceal herself from her husband, and assisting her to do so as well as to physical restraint or prevention of her will or action. Depriving the husband of his proper control over his wife, for the purpose of illicit intercourse, is the gist of the offence, just as it is of the offence of taking away a wife under same section,...and a detention occasioning such deprivation may be brought about simply by the influence of allurements and blandishment.

With that expression of opinion, if I may say so with respect, I entirely agree. The word 'detains ' means by derivation and according to the ordinary use of language 'keeps back'. But there may be various ways of keeping back. It need not necessarily be by physical force; it may be by persuasion, or, as the Court said in this particular case, by allurements and blandishment. But the use of the word does, in my opinion, require that there should be something in the nature of control or influence which can properly be described as a keeping back of the woman. Further on in the same judgment the learned Judges Said:-

Here there is no reasonable evidence to show that the woman, had not perfect freedom to leave the house or that any allurement or persuasion was required or used to induce her to remain.

7. This plainly shows that the Court considered that proof of some kind of persuasion is necessary to constitute detention.

8. We were also referred to The Queen v. Kumarasami (1865) 2 M.H.C.R. 331 and in particular to the following observations in the judgment in that case (p. 333):-

Now the section and the preceding section (497 (a)), 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.

But it is to be noted that the Court was considering the meaning of the words 'takes or entices away' in the section and not the word 'detains', and, though one may readily agree that a person who is willing to go may nevertheless be enticed or taken, it by no means follows that a man can properly be said to detain a woman who has no desire to leave, and on the contrary wishes to stay with him.

9. The learned Government Pleader cited the case of Rati Ram v. The Crown A.I.R. [1923] Lah. 45 It was held there that to constitute an offence under Section 498, it is not necessary that a woman should be physically restrained or that she should be actively prevented from the exercise of her free will or action. The gravamen of the offence consists in depriving the husband of his proper control over his wife for the purposes specified in Section 498, and a detention occasioning such deprivation may be brought about by means other than mere physical constraint, e.g., even by the influence of allurements or persuasion. The case of Sundara, Dass Tevan, already cited, was here followed. The facts were that a woman had been living under protection of the accused for more than two mouths before his arrest, and when the search party arrived with the police officers she was found concealed under a charpoy in his house. It would appear, therefore, that the accused in that case might have been convicted under Section 498 by reason of his concealment of the woman without relying upon the word 'detains'. But the Court also held on the evidence as follows (p. 46):-

There can be no manner of doubt that the woman was living with the petitioner with an illicit intent, and that she must have bean induced or persuaded by him to withhold herself from her husband.

If the evidence justified a finding of that kind, then I agree there can be no difficulty in holding that the woman was detained according to the natural meaning of the word. But in the present case there, is no such evidence.

10. Only one other case was referred to on behalf of the Crown, Emperor v. Jan Mahomed (1902) 4 Bom. L.R. 435 The judgment is very short and the facts do not fully appear. The Court stated (p. 435):-

The Magistrate admits that there is no direct evidence of any enticing or taking away of the girl by the accused. Even though the girl may have accompanied the accused of her own free will, the offence constituted by Section 498 would have been committed if there was satisfactory evidence to show that the accused wont away with her in such a manner as to deprive her husband of his control over his wife.

It appears, therefore, that this was a case of enticing or taking away and not of detaining.

11. On the other hand there are two cases which directly support the view which I have suggested as the correct one. First, in Abdul Wahid Khan v. Emperor (1927) 28 Cri. L.J. 703 the expression 'to detain' in Section 498 is defined as meaning to keep back from somebody or to restrain. The Court held that, as the complainant's wife had left him and gone willingly to live with the accused and the complainant did not take any steps for her recovery for many years, it could not be held that the accused had detained her within the meaning of Section 498. It was also pointed out in that case that where the facts are that a man has allowed a married woman to live in his house without any sort of compulsion, but because she desired to live with him, the offence which would be committed would be one under Section 497 and not under Section 498 of the Code.

12. In Lachman Chamar v. Emperor (1920) 18 A.L.J. 311 the facts were that the woman was living with the accused of her own free will and had no desire to return to her husband; when the husband went to the accused's house and claimed her, she deliberately turned her back on him and walked into the house, and the accused did not then make her over to the husband. It was held that he could not be convicted under Section 498 of detaining her. The facts in the present case do not appear to be quite as strong as that. But it is in evidence that on one occasion the complainant went with the head constable, Ex. 11, to serve a summons on Bai Nani, and after the summons had been served, she returned from the chora with the accused, turning her back upon her husband, who, indeed, according to the evidence, made no attempt to persuade her to return with him.

13. The learned Government Pleader has attached great importance to the evidence of the complainant and of other witnesses examined for the prosecution who say that, when they went to the accused's house and found Bai Nani there, the accused came out with a dharia and threatened them. He argues that this conduct of the accused, by which Bai Nani was kept out of the control of her husband, and he was deprived of the custody of his wife, was enough to constitute the offence of detaining and to bring the case within Section 498. I do not agree. The conduct deposed to by the witnesses amounts to an exclusion or obstruction of the husband, but does not, in my opinion, amount to a detaining of the wife.

14. I hold for these reasons that the view taken by the learned Sessions Judge is correct and that this appeal fails and must be dismissed.

Divatia, J.

15. I concur. The charge against the accused in this case is that of detaining the complainant's wife Bai Nani. Section 498 of the Indian Penal Code applies to the case of taking away or enticing away a married woman with the particular intent stated in the section, or concealing or detaining her with such intent. The question in this case is whether the person who detains the wife of another person, knowing that she is the married wife of that person, is guilty of the offence under this section, even though there may be entire freedom on the part of the woman, and he does not obstruct her from going where she likes. The learned Sessions Judge is of opinion in appeal that the woman Bai Nani was not detained in the house of the appellant against her wish and that there was nothing to show that she was unwilling to go to the house of the accused and no restraint whatever had been placed upon her in the accused's house. On these facts the question would be whether, in spite of the fact that there was no obstruction against the woman, the accused would be guilty of detaining her under Section 498. Now Section 498 constitutes an offence concerning a married woman, in which the proceedings would be started by the husband of the woman, who alone can file a complaint. At one time I had some doubt as to whether, in view of these facts, it cannot be said that the word 'detains' in the section has reference to detention as against the husband, irrespective of the wishes of the wife, and that therefore the person who keeps the married woman in his house may be guilty under the section as against the husband, even though the woman has no physical or any other restraint placed against her. But on a further consideration of the section I think the right view to take would be that the word ' detains' should be interpreted in its natural and ordinary sense, and this can be clear if we see the scheme of the section. The act of taking or enticing away a married woman is one act and concealing or detaining her is another act. In the former act, though the woman may be perfectly willing to go with the man, the offence would occur, because it consists simply in taking or enticing away a woman without anything more. But when we come to the latter part of the section, which speaks of concealing or detaining the woman, then, in the ordinary sense of the term, the woman would be detained only if she is prevented from going in any quarter where she wants to go, and that is the construction which has been placed in the two cases that have been cited before us, in which the question was as to the consideration of the word 'detains'. The other authorities that have been cited have reference more to the first part of the section as to taking and enticing away than as to the second part which is concerned with the concealing or detaining, and I think, therefore, that, taking the word in its natural sense, on the evidence it is clear that the woman was not prevented from going anywhere she liked. Therefore, it cannot be said that the accused in this case is guilty of the offence with which he is charged, viz., the detention of the woman under Section 498. I, therefore, agree that the view of the learned Sessions Judge is correct and that the appeal must be dismissed.


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