1. The appellant, Bhola Nath Mitter, has been convicted by Mr. Rajendra Nath Ray, an Honorary Presidency Magistrate, of offences punishable tinder Sections 497 and 498 of the Penal Code. It is found that he enticed or took away one Sikhar Basini Dasi alias Sushila Bala Dasi alias Renu, whom he knew or had reason to believe to be the wife of Aprokash Chandra Ghose, with intent to have illicit intercourse with her; and that between September 1922 and the 24th October 1922, and again between 15th November 1922 and the 29th December 1922, he committed adultery with her. There is evidence that Aprokash is by caste a Kayesth and Sushila a Dom; the Learned Magistrate has dealt with the case on this footing, and these facts are not now disputed. Sushila however, in spite of this humble origin, appears to belong to a family of some wealth; and the defence set up by the appellant in the Court below was that a false charge had been brought against him in order to defeat his efforts to secure for Sushila a legacy of Rs. 59,000 due to her under her mother's will.
2. For the appellant it has been urged that Aprokash and Sushila were not validly married; that the facts that she was taken from the custody of her husband or from a person having care of her on his behalf, and of the subsequent adultery have not been proved; and that the charge, so far as it related to the offence of adultery, was defective in form inasmuch as the precise dates of the alleged adultery were not specified, and instead it was only charged to have been committed between the dates just now stated.
3. It will be convenient to deal in the first place with the latter contentions.
4. There is ample evidence that in September 1922 Sushila was, with the assent of Aprokash, living in the house of her brother, Kristo Lal, that she left this house and was seen by a motor car driver at Chandernagore Railway station in the company of Bhola Nath. Aprokash and Kristo Lal say that 'they searched for the pair but did not discover their whereabouts until December. They were traced to a house in Tagore Castle Lane, where, according to the evidence, Sushila had been living since September and had been visited by Bhola Nath. The evidence as to their conduct there fully justifies the inference that sexual intercourse occurred during the periods specified in the charge. It was clearly impossible, in circumstances such as these, that particular dates could be assigned in the charge for the intercourse alleged, and we are satisfied that the manner in which the charges were framed they were, in the circumstances of the present case, in full compliance with what the law requires. There can be no doubt upon the evidence that a regular form of marriage was gone through by the parties in the presence of the appellant in French Chandernagore, and that this marriage was registered officially with the local authorities. But the question raised in appeal, and this is the main question, is whether the marriage is one which is valid under Hindu Law. The learned Magistrate has dealt with this point on the footing that both parties being Sudras their union is in this respect valid. It is not disputed before us that marriages between members of different Sudra castes are valid under the Hindu Law. But it is urged that this marriage was contrary to law both because Aprokash, as a Kayesth, is above, and because Sushila as a Dom is outside the Sudra class. Both branches of this argument appear to have been put forward before the Magistrate; and in rejecting them he has relied on the decision of this Court in Biswanath Das Ghose v. Shorashibala Dasi (1921) I.L.R. 48 Calc. 926 and on the case of Muthusami Mudaliar v. Masilamani (1909) I.L.B. 33 Mad. 342, respectively. In the former case it was held, following the decision of Asita Mohon Ghose Moulik v. Nirode Mohon Ghose Moulik (1916) 20 C.W.N. 901, that 'it must, therefore, be taken, as the learned Judges said in the abovementioned case, that the Bengali Kayesthas are treated as Sudras in this Court.' Some attempt was made to show us that this is an incorrect decision, but I am satisfied that the law on the subject is now well settled so far as this Province is concerned.
5. In support of the second part of his contention Mr. Mukherji urged that a Dom is not a member of a subdivision of the Sudra caste, but an outcasts, untouchable, and not a member of the Hindu community. He supports this contention by reference to the articles on the Dom caste in Risley's 'Tribes and Castes of Bengal' and Crooke's 'Tribes and Castes of the North Western Provinces and Oudh,' laying particular stress upon the opinions of the learned authors as to the aboriginal origin of the Domes. The low social status of the Dom community is a fact for which no authority is needed; but I cannot assent to the proposition that people of aboriginal origin can have no place in the Hindu system. He refers us to the text of Manu, Chapter X, verses 16, 30,51, 56, laying particular stress on verse 53. 'Let no man, who regards his duty religious and civil, hold any intercourse with them; let their transactions be confined to themselves, and their marriages only between equals' (Manu's Institutes of Hindoo Law). The degraded condition of the community is here emphasised, and intercourse with its members is deprecated. But this carries the matter little further, and I am not prepared to say that the institution against intermarriage is such as would render such a union, otherwise regularly celebrated, invalid at the present day. On the other hand there is distinct authority of the Courts to support the view taken by the learned Magistrate, though, it is true, no decision which I can find relates directly to the Dom community. The learned Vakil has invited us to hold that the case of Muthusami Mudaliar v. Masilamani (1909) I.L.R. 33 Mad. 342, on which the Court below has relied, was wrongly decided inasmuch as it proceeded on two incorrect assumptions: (i) that every one not a member of the twice-born castes is a Sudra, and (ii) that the validity of a marriage is for the caste to decide. As to the second point, it is only necessary to refer to the concluding portion of the judgment of Sankaran Nair J. at page 356, where he finds the marriage in question valid not only on the ground of custom and because it was recognised by the caste, but also 'because it is in conformity with Hindu Law which does not prohibit marriages between any persons who are not dwijas or twice-born persons;. As to the first point, the opinion of the learned Judge, expressed at pp. 346 and 347 of the report, is founded on ample authority, including a decision of this Court: Upoma Kuchain v. Bholaram Dhubi (1888) I.L.R. 15 Calc. 708. The latter case is here of particular importance since it upheld the validity of a marriage between persons one of whom was an outcasts.
6. I am of opinion then that, however great the repugnance with which a marriage such as this one may be regarded by members of the communities concerned, it is valid in law if performed with due rites.
7. The appeal must, therefore, be dismissed.
8. I agree with the judgment which has just been delivered. Sushila was married to Aprokash Chandra Ghose according to Hindu rites and presumably before her marriage had lived as a Hindu. I think, therefore, that although she was a Dom by birth, she must be taken to be a Sudra, and upon the authorities referred to by my learned brother it would appear that marriages between different subdivisions of the Sudra caste are valid. Upon the authorities it does not appear that if a marriage is otherwise valid it becomes invalid because it is opposed to the usages of the community and is not recognised by them as valid.