1. This is an application in revision by one Hari Kishan against his conviction and sentence of 6 months' rigorous imprisonment under Section 498, I. P. C., by a first class Magistrate on his appeal having been dismissed by the learned Sessions Judge, Mandi. The charge found proved against him was that he was detaining Mst. Tuli who is and whom the petitioner knows to be the wife of the complainant Chunju with intent that she may have illicit intercourse with him. The defence, disbelieved by the two Courts, was that she was living with the petitioner of her own free will and accord under a contract of service whereunder Mst. Tuli was to serve him for one year and the petitioner to repay a loan of Rs. 200/- which she had contracted from one Nathu to build a house for herself on being turned out by the complainant.
2. Even if marriage and petitioner's knowledge of it be taken as proved by the prosecution neither detention nor intention to have illicit intercourse has, in my opinion, been established. The learned counsel for the petitioner cited,--'Harnam Singh v. Emperor', AIR 1939 Lah 295 (A);--'Emperor v. Mahiji Pula', 'AIR 1933 Bom 489 (B);--'Ramnarayan Baburao v. Emperor', AIR 1937 Bom 186 (C) and--'Bhopan v. Ghhotey', AIR 1949 All 23 (D); and--the Learned Government Advocate, Ganesh Prasad v. Tulshi Ram', AIR 1933 Oudh 256 (E);--'Abdul Kayum v. Emperor', AIR 1934 Sind 72 (P);--'Banarsi Raut v. Emperor', AIR 1938 Pat 432 (G) and--'Bipod Bhanjan v. Emperor', AIR 1940 Cal 477 (H-I), to show what 'detains' in section 498, I. P. C., means. To my mind, having regard to the fact that Section 498, I. P. C., deals with one of the offences relating to marriage, the word 'detains' in that section means any act of the offender which has the effect of keeping the woman back from her husband, irrespective of whether that effect is brought about by physical force, blandishments, mesmeric force, telephathic action or in any other manner. The mere fact of the woman keeping back from her husband would be immaterial unless it can be said to have been brought about by the alleged offender. And whether it has been so brought about must depend on the facts and circumstances of each case.
This much, however, may, in my opinion, be safely stated that the effect in question will be deemed to have been brought about by the offender when it is his act, however significant, that turns the balance in favour of the woman keeping back from her husband. That being so, however determined may a woman be not to go back to her husband, whether due to ill-treatment, infidelity or any other cause, the offender will be deemed to have detained her if he offers her the facility, e.g., food and shelter, which enables her to keep back from her husband. And the force of this interpretation will be apparent when the criminal purpose of detention referred to in the section is borne in mind. Where that intent or purpose is proved, detention will consequently be ascribable only in rare cases to the free will and accord of the woman, specially in a country like ours which is not yet free from the taint of subjection of woman. I find support for the basic interpretation of the word 'detain' in--'AIR 1933 Bom 489 (B)', and for the application of that interpretation in--'(1872. 7 Mad Jur 133 (J);--'Queen v. Srimottee Poodee', 1 WR Cr 45 (K);--'Queen v. Kumarasami', 2 Mad HC 331 (L) and--'AIR 1938 Pat 432 (G).
3. In the present case the uncontroverted fact is that the relations between the woman and her husband, who had taken another espouse, were strained, so much so that the husband had been criminally prosecuted for beating her and the woman had to claim maintenance from him under Section 488, Criminal Procedure Code. The defence produced Nathu, who says that she borrowed Rs. 200/- from him and with that purchased land for herself. True, there is no writing in support of the loan, but considering that admittedly Nathu's son is Mst. Tuli's dharam-bhai, and the taking of the loan is supported by the testimony of another defence witness, Dhanu, who was not cross-examined, and the petitioner has admitted having undertaken to pay it off, it is further established that Mst. Tuli was not only ill-treated but left in such straitened circumstances that she had to take a loan and purchase land to eke out her livelihood.
In these circumstances, while there is no doubt that Mst. Tuli lives with the petitioner, I see no reason to reject the defence version that she is living with him because she is working as his servant so that he may pay off the Rs. 200/- to Nathu in one year. It is noteworthy that Mst. Tuli has supported this version as a defence witness. It may also be noted that the defence evidence regarding the loan has been believed by both the Courts below. What they have disbelieved is that she is serving the petitioner that he may pay off the loan. In their view the debt is being used as a handle by the petitioner, in the words of the learned Sessions Judge, to detain the woman for the immoral purpose.
4. The prosecution evidence regarding the immoral purpose mentioned in the section is, however, quite worthless. Leaving aside the testimony of witnesses who only testify to having casually seen together Mst. Tuli and the petitioner, for such evidence is generally produced to bolster up cases under Section 498--'Nawab v. Crown', 100 Pun LR 1916 (M), the only witnesses whose evidence may be referred to are Husnoo (P. W. 2. and Joru (P. W. 3), who profess to have seen the petitioner and Mst. Tuli in a compromising situation on a cot. The former is, however, no better than an accomplice for he admits that he gave them shelter after having been asked by the petitioner to abduct the woman. His testimony is, therefore, not worthy of credence without corro-boration, but of the incident of which he speaks he is the sole witness. The other is not an independent witness for he admits that at the time he appeared as a witness he was employed on constructing the complainant's house. The petitioner and the woman have both denied the allegation.
5. In the circumstances, it appears that thewoman was living with the petitioner as his servant under the aforesaid contract of service. Thisis, therefore, one of those rare cases mentionedabove where detention of the woman is ascribablewholly to her free will, and that without any intention on the part of the petitioner that she mayhave illicit intercourse with him or anybody. Therevision is accordingly allowed, the conviction andsentence of the petitioner are set aside and heis acquitted of the offence under Section 498, I. P. C.He is on bail, his bail bonds are discharged andhe need not surrender.