Hardayal Hardy, J.
(1) This judgment will dispose of a criminal appeal and two criminal revisions. The appellant in Criminal Appeal No. 68 of 1967 is Chaman Lal Monga who was complainant in the case. He is also petitioner in Criminal Revision No. 107 of 1967. The respondent in the appeal and the criminal revision is Haji Sabar Ali who is also petitioner in Criminal Revision No. 157 of 1967. The respondent in that criminal revision is the State.
(2) Haji Sabar Ali was tried by a magistrate for an offence under Sections 497 and 498 Indian Penal Code and was awarded a sentence of two years R.I. and fine of Rs. 1,000.00 for an offence under Section 497 Indian Penal Code and a sentence of one year R.I. and a fine of Rs. 1,000.00 for an offence under Section 498 Indian Penal Code . In default of payment of fine under both the counts he was ordered to undergo further rigorous imprisonment for a period of three months each. Both the sentences of imprisonment were ordered to run concurrently. Out of the amount of fine a sum of Rs. 1500.00 was ordered to be paid to the complainant. On appeal by Haji Sabar Ali, the learned Additional Sessions Judge set aside the conviction for an offence under S. 498 Indian Penal Code but maintained the conviction under Section 497 Indian Penal Code . The sentence of imprisonment appeared to the learned Additional Sessions Judge to be harsh and he thereforee reduced the same till the rising of the court but maintained the sentence of fine. In default of payment of fine, Haji Sabar Ali was ordered to under-go rigorous imprisionment for three months. Out of the fine, if realised, a sum of Rs. 500.00 was directed to be paid to the cornplainant. It seems that the complainant was not satisfied with the order passed by the trial Court and had filed a revision petition praying that the sentence awarded by the learned magistrate should be enhanced. That petition was however dismissed.
(3) Against the judgment of the learned Addl. Sessions Judge, the complainant has come up in appeal on the ground that the conviction of Haji Sabar Ali who will hereafter be referred to as the respondent under section 498 Indian Penal Code should not have been set aside and that he should be punished both in respect of an offence under Section 497 and Section 498 Indian Penal Code . The complainant has also filed a revision petition for the enhancement of sentence. Respondent Haji Sabar Ali has on the other hand filed a revision petition praying that there is no material for convicting him of the offence under section 497 Indian Penal Code and has thereforee asked for setting aside the judgment of the learned Additional Sessions Judge and acquitting him of the offence of which he has been convicted.
(4) The facts are that the complainant Chaman Lal Monga, who will hereafter be referred to as the appellant, was married to Rani Devi in 1950 according to Hindu rites. Out of this wedlock two male children were born. The appellant is employed as a clerk in Queen Mary's School, TisHazari, Delhi.
(5) The respondent Haji Sabar Ali was lunch contractor in that school. The appellant's allegations are that in November 1961 he and his wife came in contact with the respondent who with a motive, persuaded the appellant and his wife to start the business of bakery. The appellant fell into the trap of the respondent and the latter started paying visits to the house of the appellant regularly. He would visit the house of the appellant in his absence. The appellant alleged that the motive of the respondent was to commit adultery with his wife.
(6) The appellant received information from his friends including Satish Kumar, about the evil intentions of the respondent. He admonished his wife and warned the respondant not to visit his house. On 15-10-1962 the appellant saw his wife seated with the respondent in the front seat of the car of the respondent near Shahadra Bridge. He brought out his wife from the car and gave her beating and administered a warning to the respondent. The appellant alleged that the respondent continued his illicit intimacy and adulterous life with Rani Devi and they used to meet at different places. The information with regard to the illicit intimacy of the respondent with Rani Devi and their meetings at various places was conveyed to the appellant by SatishKumar.
(7) The appellant alleged that on the evening of 5-7-1963 the respondent enticed away his wife and thereafter the respondent and Rani Devi were living in adultery. According to the appellant the respondent concealed and detained Rani Devi for a few days in Rana Partap Bagh where he used to have sexual intercourse with her. The appellant stated that the respondent was committing sexual intercourse with Rani Devi against his will and consent. From Rana Partap Bagh, Rani Devi was shifted to a House in Rajinder Nagar where the respondent was living in adultery with her and was having sexual inter course with her.
(8) On 26-9-1963, the appellant filed a complaint in the court of Additional District Magistrate Delhi for an offence under Sections 497 and 498 Indian Penal Code against the respondent. Afteta preliminary inquiry held by a magistrate to whom the case was made over, the Additional District Magistrate, Shri S. C. Pandey, after considering the report of the Magistrate found that a prima facie case under Sections 497 and 498 Indian Penal Code had been made out against the respondent who was accordingly summoned to face the trial.
(9) It seems that in the complaint no specific date has been mentioned as to the commission of the offence of adultery by the respondent. All that is stated therein is that the respondent and Rani Devi have been living in adultery and that on 5-7-1963 the respondent enticed away Rani Devi knowing fully well and having reason to believe that she is the wife of the appellant and that they are having sexual intercourse and are leading an adulterous life. But when we see the charge framed against the respondent by the learned magistrate on 5-2-1966, it relates to the incident of adultery on 30-9-1963 and enticement or detention is also on and from that date.
(10) One of the questions thereforee raised by the learned counsel for the respondent is that there is non-compliance with the provisions of Section 199 Criminal Procedure Code . Three authorities have been cited by the learned counsel in support of the submission made by him. A Jagdamba Prasad and others v. Emperor : AIR1933All626 is a decision of Kendall J. The case however does not appear to us to have any bearing on the question raised by the learned counsel. The appellants in that case were prosecuted by the police for an offence under Section 366-A, Indian Penal Code, but they were convicted under Section 498 Indian Penal Code . Although no complaint was made by the husbands of the women in respect of whom the offence was said to have been committed, they had come forward to give evidence in the case. In the present case the complaint itself has been made by the husband and although it does not mention the date on which the offence of adultery took place, it certainly mentions the date on which enticement took place. It is no doubt true that the charge relates to a date which is subsequent to the date on which the complaint was filed, but that circumstance has nothing to do with the non-compliance with the provisions of Section 199 Criminal Procedure Code. The only requirement of that section is, leaving aside the exceptions given in the two provisos, that no court shall take cog- nizance of an offence under Section 497 or section 498 of the Indian Penal Code, except upon a complaint made by the hus- band of the woman, or in his absence, made with the leave of g the court, by some person, who had care of such woman on his behalf at th^time when such offence was committed. There was aoolaphuat before the learned magistrate which was filed by the husband of the woman and of which cognizance had been taken. The only question is whether the said complaint could justify a charge relating to an offence committed after the filing of the complaint. The authority cited by the learned counsel does not deal with that matter.
(11) The next case cited by the learned counsel is a Single Bench decision of Patna High Court in Raghunath Puri and others v. Emperor (AIR 1932 Patna 72) . This case also does not appear to us to have any bearing on the question before us. The question in that case was as to whether allegations of other matters, besides those mentioned in the complaint constituted a complaint within the meaning of that term as defined in Section 4(h) of the code. The adultery or enticement forming the subject-matter of charge in the present case is not another matter. When the complainant talked about the respondent living in adultery with his wife, it was acontinuous course of conduct that he had in his mind.
(12) The last case cited by the counsel is a Bench decision of Patna High Court in Ramjanam Tewari and other v. Emperor AIR 1935 Pat 357 One of the offences with which the appellants were charged related to a charge under Section 498 IPC. This was in addition to offences under Sections 366, 420 and 120-B Indian Penal Code . The learned Addl. Sessions Judge who tried the appellants told the jury that the Assistant Public Prosecutor had not been able to satisfy him that section 199 Criminal Procedure Code . had been complied with. Notwithstanding this admonition the jury returned the verdict of guilty of a charge under Section 498 Indian Penal Code considering that the charge was proper. As this was not the view of the learned Additional Sessions Judge, he made reference to the High Court under S. 307 Criminal Procedure Code . where it was held that in the absence of a complaint under Section 199 Criminal Procedure Code it was impossible to do anything with the charge.
(13) It would be seen that this was again a case where there was no complaint by a husband. It may however be noticed that although the complaint was filed by the husband on 26-9-63 he had obtained a warrant from the Additional District Magis trate under Section 100 Criminal Procedure Code . according to him the respondent was removing his wife from place to place and he had come to know that he was living in adultery with her at New Rajinder Nagar, New Delhi. After the filing of the complaint thereforee he obtained the help of the police and certain other witnesses and was able to locate the respondent and his wife Rani Devi in double storyed quarter No. 330, New Rajinder Nagar, New Delhi on the night between 29th and 30th September, 1963 when, according to the evidence of those witnesses, the respondent and Rani Devi were found in the same room. It was alleged by the complainant that both of them were naked.
(14) During the course of preliminary evidence, the incident on the night of 30th September 1963 was high-lighted and after the report of the inquiry magistrate the respondent was summoned by the Additional District Magistrate and the Magistrate to whom the case was sent for trial after recording evidence under Section 252 Criminal Procedure Code, framed a charge on 5-2-1966 on the basis of that evidence with reference to the incident of 30th September, 1963. The original complaint as well as the application for a warrant under Section 100 Criminal Procedure Code . was both filed by the appellant. The discovery of the respondent in the company of the appellant's wife in a room in New Rajinder Nagar in the dead of the night were thereforee part of allegations made by the appellant to a magistrate with a view to his taking action under the Criminal Procedure Code that the respondent had committed an offence. These allegations thereforee formed part of the complaint which the appellant as husband of Rani Devi had made and as such the court could take cognizence of that offence. In any event, if there was some irregularity in the charge framed against the respondent no finding or sentencpassed by a court of competent jurisdiction can be reversed or altered in appeal or revision under Section 537 Criminal Procedure Code. More so when no such objection had been taken at an earlier stage of the proceedings and we do not find any failure of justice having been occasioned by any such irregularity in the charge.
(15) Counsel for the appellant laid considerable stress on the evidence relating to a charge under Section 498 Indian Penal Code. It was submitted that there was considerable volume of evidence to show that Rani Devi had been enticed away by the respondent. He took us through the evidence on record but it appears that barring the word of the appellant there was no other evidence which could point to the respondent as a person who had enticed away Rani Devi on 5-7-1963 when according to the appellant she left his house and did not return thereafter. The appellant mentioned the name of one Mohammedan broker who had told him that his wife had gone away with the respondent. The Mohammedan broker was not examined by the appellant and although the previous conduct of Rani Devi does indicate that she was being induced by the respondent there is no convicing evidence that it was the respondent who had taken away or enticed Rani Devi from the appellant's house. The early history of this woman also shows that this was not the first occasion when she had left the house of the appellant. The appellant admitted that in October 1952 Rani Devi left for Kishan Nagar near Ajmer with Sudesh and Bawa for illicit relations with one Roop Singh and that strained the relations between the husband and wife. The relations remained strained for about 1' or 2 years although they continued to live together. They lived together at Shahdara for about 8 months and then they returned to a house in Katra Gokal Shah. There she contacted illicit relations with Satish Kumar. In the year 1959-60, Rani Devi wanted to go to Doiwala near Dehra Dun to see her mother.
(16) The appellant boarded her in a train, but Satish Kumar met her on the way and she went with him to Dehra Dun and stayed with him in a hotel. In 1961 she developed intimacy with the respondent and the appellant came to know of it in August 1962.
(17) The learned Additional Sessions Judge thereforee appears to us to be right in holding that Rani Devi had voluntarily left the house of the appellant. In August 1963, the appellant filed a petition for dissolution of marriage with Rani Devi impleading Satish Kumar and the respondent as co-respondents. He had alleged in that petition that his wife was living in adultery with Satish Kumar and Haji Sabar Ali. The present complaint was filed after the appellant had filed a petition for dissolution of marriage on the ground of wife's adultery. The appellant thereforee did not know who had enticed away his wife nor did he know whether she was living with Satish Kumar or the respondent or any other person. When a woman leaves the protection of her husband and her past record is such that she has had sexual relations with persons other than her husband she is no more than a wench. Rani Devi has had two children who were living with the appellant but we are told that the children were kidnapped afterwards and it is not known where they are now living. The appellant does not even know whether Rani Devi is now living, The marriage between the appellant and his wife has since been dissolved. But these are matters which have occurred after the judgment of the learned Additional Sessions Judge was delivered on 4-11-1966. There is however no evidence that the respondent had concealed or detained Rani Devi in House No. 330, New Rajinder Nagar on the night between 29th and 30th September 1963 against her will. It is quite probable that Rani Devi left the protection of her husband voluntarily and thereafter she joined the respondent voluntarily.
(18) Counsel for the appellant basing himself on the decision of the Supreme Court in Alamgir and another v. State of Bihar : 1959CriLJ527 , submitted that the word 'detains' may denote detention of a person against his or her will, but in the context of Section 498 Indian Penal Code . it is impossible to give that meaning to the said word. Detention in the context must mean keeping back a wife from her husband or any other person having the care of her on behalf of her husband with the requisite intention. Gajendragadkar J. (as he then was) said 'such keeping back may be by force, but it need not be by force. It can be the result of persuation, allurement or blandishments which may either have caused the willingness of the woman, or may have encouraged, or co-operated with, her initial inclination, to leave her husband. If the willingness of the wife is immaterial and A it cannot be a defense in cases falling under the first three categories mentioned in S. 498, it cannot be treated as material factor in dealing with last category of case of detention mentioned in the said section. It may be that the wife was dissatisfied with her husband; and wanted voluntarily to leave her husband but where the evidence is that she must have been encouraged or induced not to go back to her husband because she knew that she would find ready shelter and protection with the accused and she must have looked forward to marry him and the accused in fact claimed to have married her, there can be no doubt that he intended to have illicit sexual intercourse with her. If having thus left the house of her husband she came to stay with the accused and he allowed her to stay with him, it can be said that he has 'detained' her within the meaning of Section 498.'
(19) By this judgment the Supreme Court over-ruled two decisions of Calcutta and Lahore High Courts in Mubarak Sheikh v. Ahmed Newaz (43 Calcutta Weekly Notes 980) and Harnam Singh v. Emperor AIR 1939 Lah 925.
(20) In the present case however, according to the appellant himself, his wife had illicit relations with Satish Kumar and the respondent and the appellant himself admitted that he did not see his wife going away on 5-7-1963. The Mohammedan broker who had informed him was also not produced as a witness. It cannot thereforee be said that the woman was being detained by the respondent as a result of allurements or blandishments, or she was being encouraged or induced not to go back to her husband. It has also not been proved that the respondent has actually married that woman, although one of the witnesses did say that the respondent and Rani Devi were living together in Rajinder Nagar as husband and wife but there is no positive evidence on that point.
(21) In the circumstances, in an appeal against acquittal we do not feel inclined to agree with the counsel for the appellant that the respondent should also have been convicted for an offence under S. 498 Indian Penal Code . We shall deal with the matter after we have dealt with the respondent's revision application where the contention urged on his behalf is that he could not have been convicted under Section 497 Indian Penal Code . The main point urged by the counsel for the respondent is based on Section 50 of the Evidence Act and the stress was laid by the counsel on the proviso to the section which states that the opinion as to the existence of relationship of one person to another though relevant under certain circumstances, no such opinion shall be sufficient to prove a marriage in proceedings under ............ or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code. The counsel submitted that the provisions of the section enjoined that when the marriage is an ingredient to an offence the fact of the marriage must be strictly proved. Several cases were cited to show that the mere opinion expressed by conduct will not be sufficient and the court should require some better evidence of the marriage than the mere submission of the complainant and the woman.
(22) There is no doubt that in the present case the question of the appellant's marriage with Rani Devi may not have been proved as required by Section 50 of the Evidence Act. But this question was not raised before the trial Court nor was it raised before the learned Addl. Sessions Judge. The question of the appellant's marriage with Rani Devi was almost taken for granted. In any case, in the proceedings for dissolution of marriage where marriage has to be strictly proved, the appellant came to court and obtained divorce from his wife. The wife did not appear to contest the petition. If she was not the lawfully wedded wife of the appellant she would have easily defeated the application of the appellant for dissolution of the marriage. According to Satish Kumar (Public Witness 6), the appellant was married to Rani Devi in the year 1950. They were both residing in the same house where Satish Kumar was also residing. He deposed to the appellant having married Rani Devi and he also stated that they were living together as husband and wife. In fact, Satish Kumar and his father were the landlords of the house in which the appellant was married with his wife. Rani Devi who appeared as a defense witness at the trial also admitted that she was married to the appellant and gave birth to two children from him. These statements coupled with the statement of the appellant himself are statements of fact and not matters of opinion expressed by conduct with regard to the existence of relationship between the appellant and his wife and it could not thereforee be said that the marriage between the appellant and his wife has not been strictly proved.
(23) As regards the evidence of the respondent living in adultery with Rani Devi we need not refer at length to the statements of Bakshi Jagdev Singh (Public Witness 2), Shri Dev Parkash A Shastri (Public Witness 3), Dr. Pyare Lal Kapur (Public Witness 4) and Krishan Lal Pw 5). Bakshi Jagdev Singh is the General Secretary of Delhi Akali Dal. He along with Shri Dev Parkash Shastri and another person went to the premises of 330, Double Storeyed Quarters, New Rajinder Nagar, New Delhi and knocked at the door. The door was not opened. These persons forcibly opened the door and found the respondent and Rani Devi quite naked. On seeing these persons both of them tried to wear the clothes, but they were not allowed to do so. A hue and cry was raised and many neighbours collected there. The police party which was on patrol duty also arrived there. The women of the locality who had gathered there suggested that Rani Devi should put on some clothes. The witness wanted to show her to the authorities in that state but ultimately she was allowed to cover herself with a gown. The respondent was also naked and he was allowed to cover himself with a towel along his waist. The respondent and Rani Devi were then taken to the police station. New Rajinder Nagar. The story given by Dev Parkash Shastri (Public Witness 3) who was an ex-Councillor of Rajinder Nagar constituency is also to the same affect. Dr. Pyare Lal who had also been taken by the appellant gave a similar version. This evidence in our opinion is sufficient to establish that on the night of 30th September, 1963 the Respondent and Rani Devi were found together in a room in the dead of night, that there was only one cot in the room and both he and the woman were found naked. One of the witnesses went to the length of saying, that he saw Rani Devi and the respondent lying on each other but the circumstance that they are not related to each other and the woman had left her husband's house and was seen alone in a naked condition with the respondent who also was naked at that time, clearly establishes that the respondent was having sexual inter-course with her. The appellant was pursuing the respondent and his wife. It cannot thereforee be said that the respondent was having sexual interi course with the woman with the consent or connivance of her husband. The courts below have found the respondent guilty of an offence under Section 497 Indian Penal Code and we see no reason to take a different view.
(24) As regards the sentence, the past conduct of the woman is such that it may almost give rise to an impression that she was not at all satisfied with her marriage with the appellant. Although she had given birth to two children she was running around. This started almost two years after her marriage when she was found to have gone to Kishan Nagar near Ajmer to have illicit relations with one Roop Singh. Then she contacted intimacy with Satish Kumar and in due course yielded to the respondent. The circumstance that the appellant has already obtained a divorce from this woman and the petition for divorce was filed even before he lodged a complaint against the respondent the sentence of imprisonment till the rising of the court and a fine of Rs. 1000.00 will meet the ends of justice. This is what the learned Additional Sessions Judge has done and we do not wish to take a different view.
(25) The result is that the appeal as well as the criminal revisions filed on both sides are dismissed.