M.B. Sharma, J.
1. This revision petition is directed against the judgment of the learned Sessions Judge, Jodhpur, dated August 3, 1977 under which, the learned Judge affirmed the conviction of the accused petitioner under Section 497 IPC as well as the sentence, awarded by the learned Magistrate under his judgment dated 3.3.1976, while convicting the accused petitioner Under Section 497 IPC sentenced him to undergo six months' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine, to further suffer one month's rigorous imprisonment.
2. The facts in brief are there: Ramashankar was married to Smt. Ramabeti in accordance with the Hindu rites & customs in the year 1954, & both of them were living in Jodhpur in a rented house in the year 1966. The accused petitioner Krishna Kant was also living as a tenant in the adjoining room. Ramashankar was transferred from Jodhpur and when he asked his wife to accompany him, she refused to go with him. Ramashankar was retransferred to Jodhpur and then he saw that Ramabeti his wife and Krishna Kant were having sexual intercourse. He asked Ramabeti to leave the house but she did not agree and gave out that she has started living with Krishanakant the accused petitioner and has established relationship as husband and wife. There was no effect of any persuation. A complaint was filed by Shri Ramashankar and the accused petitioner was tried. The learned Magistrate after trial convicted and sentenced the accused petitioner as aforesaid. The plea set up by the accused petitioner in his statement under Section 313 was that he is already married and has no concern whatsoever with Smt. Ramebeti. The accused petitioner examined as many as two witnesses in defence.
3. So far as the conviction of the accused petitioner under Section 497 IPC is concerned, there is sufficient material on record and that apart, while sitting in revision; generally this court does not interfere with the findings of fact arrived at by the courts below unless the finding of fact is arrived at on no evidence or is perverse. The accused petitioner was unmarried while living in the locality where the complainant Ramashankar was living along with his wife Smt. Ramabeti. Shri Kala, learned advocate on behalf of the complainant Shri Ramashankar gives out that two actions were taken by his client: one by filing a complaint under Section 497 IPC and the other by filing a divorce application under Section 13 of the Hindu Marriage Act on the ground of adultery. Both the actions succeeded and the accused was convicted Under Section 497 and the divorce decree was also granted. He submits that thereafter, his client Ramashankar has married again and that Ramabeti is still living with the accused petitioner along with the children of Ramashankar and both of them are living as husband and wife though they have not yet married. Mr. K.N. Joshi submits that the accused petitioner is supporting Smt. Ramabeti and her children though not by him and has also got married one daughter which was begotten from Ramashankar. He submits that now, if the accused, after a lapse of as many as eight years, is sent to jail to undergo the sentence awarded it will be to deprive Ramabeti and her children of the bread-earner and that in the peculiar circumstances of the case, the case being such which should be dealt with under Section 360 CrPC, or the case should be so dealt with under the Probation of Offenders Act.
4. An offence Under Section 497 IPC is punishable with imprisonment upto five years or with fine or with both. The provisions contained in Chapter XX and more so, of Section 497 IPC are for the protection of the husband. I am, therefore, not inclined to extend to benefit of Section 360 CrPC or of the Probation of Offenders Act. But, in the peculiar circumstances of the case, which have already been enumerated above, the offence being such which can also be punished with fine only, I am of the opinion that the sentence already ungergone by the accused shall meet the ends of justice.
5. In the result, the revision petition is allowed in part. While maintaining the conviction of the accused petitioner under Section 497 IPC, the sentence of imprisonment is reduced to a period already undergone by him.