1. The petitioner in this case was convicted by the Stationary Sub-Magistrate. Vridhachalam, for an offence under Section 498. I. P. C, and sentenced to a fine of Rs. 200, and this was confirmed in appeal by the Sub-Divisional Magistrate, Ulundurpet.
2. 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 the Adipuram festival, promising to send her back in two or three 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 Section 498, I.P.C. and for an offence under Section 379, I.P.C. alleging that the jewels were taken away. The Magistrate referred the matter under Section 202, Cr. P. C. and the police report was that no case under Section 379, I.P.C. has been made out, though a case under Section 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.
3. 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 headman 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. I 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 she was concerned, she considered her marriage as cancelled. She also accuses 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 24-11-1949 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.
3a. 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.
4. 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 info 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.
5. 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 had done something, which induced C. W. 1 to come away with him, he cannot be found guilty of the offence under Section 498, I.P.C. and that in this case there is nothing to indicate that he did anything at ail. In support of his contention he relies upon the following decisions: viz., -- 'Queen v. Pochun Chung', 2 WR Cr 35; -- 'Emperor v. Iwaz Ali', 37 All 624; -- 'Mahadeo Rams v. Emperor', AIR 1943 Bom 179 and -- 'Bhopan v Chhotey', AIR 1949 Ail 23.
6. In -- 'Queen v. Pochun Chung', 2 WR Cr 35;, the learned Judges were considering a case both under Ss. 497 and 498, I.P.C. The (earned Judges seem to think that a person having been convicted under Section 497, I.P.C. need not be convicted also under Section 498, I.P.C. Glover J. observes that Section 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 Section 497, and dealing with this the learned Judge adds: 'I say 'even ;f proved', because the woman 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 of her husband, the desire of the prisoner to marry the woman, and the very loose way in which the 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' with-in the meaning of Section 498, I. P. C.
7. The case in -- 'Emperor v. Iwaz Ah', 37 All 624 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 Ewas 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 the accused Ewaz Ali, probably with full knowledge of the circumstances, gave her a home and finally transferred her to keeping of Hira Lal, etc.'
The learned Judge quotes observation for another judgment that
'on the admitted facts the leaving and the removal out of the keeping of the lawful guardian was the act oi the girl herself long before she met the accused.'
This 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.
8. In -- 'Mahadeo Rama v. Emperor', AIR 1943 Bom 179 it was held that to bring Section 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 wile 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.
9. 'Bhopan v. Chhotey', AIR 1949 All 23 is a case where the question of detention under Section 498 was considered. It was held that once the free will of woman is established, any help or assistance rendered 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 accord are absolutely irrelevant and immaterial for the offence under Section 498.
10. As against the above decisions, we have decisions of our High Court and they are -- 'Queen v. Kumaraswami', 2 Mad HCR 331: 1 Weir 569 and -- 'In re Sundara pass Tevan', 4 Mad HCR 20, the' latter of which is followed in 7 Mad Jurist 133. In -- 'Queen v. Kumaraswami', 2 Mad HCR 331 the facts were: the prisoner and one Ramaswami, 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 Ramaswami 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 sometime refused to yield 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 instant reluctant to yield to her solicitations can render the case different from one in which the advances 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(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.' This decision is approved and followed in --'In re Sundaradass Tevan', 4 Mad HCR 20 where the learned Judges were really dealing with detention.
11. John D. Mayne in his book on Criminal Law of India, 4th Edn. 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 Mad. Jurist 133.
12. In -- 'Abdul Sathar v. Emperor', 54 Mad LJ 456, 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 Section 363, I. P. C.
13. In -- 'Akkirayu Sanyasi, In re', 1949 Mad WN 278, Govinda Menon J. has held that it would amount to taking in the following circumstances. Though the parties belonged to a village in Vizagapatam 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, according to the learned Judge, is that it was as a result of some action taken by the petitioner that the woman went with him.
14. In -- Debaprosad v. The King', : AIR1950Cal406 , 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 abandonment of her guardian will not keep her away in law from continuing to be in the keeping of the guardian.
15. It is clear from the Madras decision, particularly in -- 'Queen v. Kumaraswami', 2 Mad HCR 331, 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 Sundaradas Tevan', 4 Mad HCR 20 and -- 'Queen v. Kumaraswami', 2 Mad HCR 331, 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.
16. 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 & wife(?), the other person should not be held to have 'taken' the wife within the meaning of Section 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 interests of society require it.
17. 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 sentence, in the circumstances, is not excessive and is confirmed and the petition is dismissed.