S.M. Fazl Ali, J.
1. The petitioners Gian and Mst, Shan-kari have been convicted under Section 498, R, P. 0., and 498/109, R, P. C, respectively and sentenced to six months rigorous imprisonment.
2. The prosecution case was that Devi Ditta the complainant had married Mst. Shankari in what is known as Chadar Indazi form about 10 years before the complaint was lodged and after the marriage they had got two children from the wed-lock. It is alleged that on 15th of June 1961, the accused Achru, Chatru, Sardari, Panjabo, and Sunder (who have been since acquitted) came to the house of the complainant during his absence and enticed away Mst. Shan Kari and thereafter the accused Gian is said to have married her and kept her at his house.
3. The defense was a denial of the marriage of the complainant with Mst. Shan Kari.
4. Both the Courts below after examination of the evidence came to a finding that Mst. Shan Kari being a widow of the brother of the complainant was married to him in Chadar Indazi form. Mr. Dutt appearing for the petitioners has raised a short point
He has submitted that even if it be assumed that the petitioner Mst. Shankari was married to the complainant in Chadar Indazi form, this is not a legal marriage unless a custom is proved justifying a mar-riage by Chadar Indazi. The complainant neither [alleged in his complaint that a custom of the form of Chadar Indazi was prevalent in his community nor did he adduce any evidence to prove the existence of such a custom. I have gone through the evidence land I am unable to find any evidence to indicate the existence of such a custom.
5. Mr. Karim appearing for the State submitted, however, that as the evidence shows that the petitioner Mst. Shankari was actually married to the complainant in Chadar Indazi form and the marriage was performed ten years ago the Court should presume the existence of such a custom. I am, however, unable to agree with this contention. In a criminal case, particularly, no question of presumption arises. Section 60, of the Evidence Act, clearly lays down that where marriage is an essential ingredient of the offence, no presumption can be drawn and a marriage must be proved as a fact. Before a person can Be convicted under Section 498, R. P. C, the prosecution must affirmatively prove not only that a marriage was performed but the marriage so performed was a valid and lawful marriage. In the instant case, the parties being Hindus, it was the bounden duty of the prosecution to prove that a lawful Hindu marriage took place between the petitioner Mst. Shankari and the complainant Devi Ditta. From the prosecution evidence, itself, it would appear that no ceremony excepting that of throwing of Chadari was performed. On the other hand, the prosecution relies On what is known as Chadar Indazi form of marriage. Such a marriage is clearly illegal and unlawful under the Hindu Law and would be justified only on proof of a custom justifying such a marriage. The custom of Chadar Indazi has neither been pleaded nor proved in the present case. In absence of the proof of a custom justifying such a marriage, it is manifest that the marriage alleged by the complainant with Mst. Shankari was not a lawful marriage under the Hindu Law and the marriage being illegal, one of the essential ingredients to constitute :an offence under Section 498, R. P. C, is completely wanting in this case.
6. In these circumstances, therefore, the petitioners are entitled to an acquittal.
7. For the reasons given above, the application is allowed, the conviction as also the sentence passed on the petitioners are set aside, and they are acquitted of the charges framed against them. The petitioners are now discharged from their bail bonds and the Rule is made absolute.