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Kesar and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1955CriLJ1188
AppellantKesar and anr.
RespondentThe State
Cases ReferredMohammad Aslam Khan v. Emperor
Excerpt:
- .....cannot include persuasion by means of blandishments or similar inducements, which would leave the woman free to go if she wished'. as against this, in the allahabad judgment referred to above it has been held that 'detention may be brought about even by blandishments and allurements,' in - 'emperor v. mahiji fula' air 1933 bom 489 (e), it has been held that 'detention need not be necessarily by physical force; it may be by persuasion, or by allurements and blandishments.' the view that detention cannot include persuasion by means of blandishments etc., taken in 'air 1939 lah 295 (d)', does not receive any support from the other authorities produced before me. even the lahore high court has in an earlier authority reported asi - 'mohammad aslam khan v. emperor' air 1937 lah 617. (f),.....
Judgment:
ORDER

Kilam, J.

1. This is a Revision application directed against an order of the learned Sessions Judge Jammu whereby the conviction and sentence Under Section 498, R, P. C, recorded against the accused persons has been confirmed. The complainant's allegations against the accused persons are that during the period that he (complainant) was held in detention in Pakistan, his lawfully wedded wife (accused 2) was enticed away by accused 1 with intention that he may have illicit intercourse with her and that the accused 2 continues to put up with the accused 1 who has extended shelter to her, Both the courts below have arrived at the concurrent finding that the accused 2 is the lawfully wedded wife of the complainant and that she was living on his behalf under the care of his parents when she was enticed away by accused 1. It has further been found by the Courts below that accused 1 continues to detain the woman in his house for the purpose of having illicit intercourse with her. These findings are supported by evidence and I do not find on facts any reason to interfere with them.

2. The learned Counsel appearing on behalf of the accused persons did not seriously challenge these findings, but he has assailed them on various points of law. He has in main drawn my attention to the derivative meaning of the word 'detained' according to which an accused can be convicted Under Section 498 only if he 'keeps back' a woman from going to her husband. According to the applicant's learned Counsel, there should be something in the nature of control or influence exercised by the accused which can properly be described as 'keeping back' a woman. He has further elaborated his argument by submitting that if a married woman goes out of her own free-will to live in the house of another man, even with the intention of having illicit intercourse with him, it cannot y be said that such a man detains the woman, simply because the element of control or influence on behalf of the accused is wanting. In support of his argument he has drawn my attention to - 'Ram Narayan Baburao v. Emperor' AIR 1937 Bom 186 (A), which dealt with the case of a woman who was discarded by her husband and was living with her father and brother, where she was not very happy. In course of time, she fell in love with the accused, and both of them eloped to another place. It was held by their Lordships of the Bombay High Court that 'there was no enticing by the accused and that the elopement was a joint adventure in which the motive force was mutual affection.' In the same Bombay authority it was further held that:

The word 'detains' in Section 498 has the ordinary meaning of 'keeping back'. There may be various ways of keeping back. It need not necessarily be by a physical force, but the use of the word does require that there should be something in the nature of control or influence which can properly be described at a keeping back of the woman, and it cannot be properly said that a man detains a woman if she has no desire to leave and on the contrary wishes to stay with him,

He has further drawn my attention to - 'Bhopan v. Chhotey' AIR 1949 All 23 (B), in which it has been held that 'Once the free will of a woman is established, any help or assistance rendered by the accused cannot be regarded to constitute detention. It has further been held in the same judgment that

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

A similar view has been taken in - 'Prithi Missir ' v, Harall Nath Singh' AIR 1936 Cal 450 (C). In - 'Harnam Singh v. Emperor' AIR 1939 Lah 295 (D), it has been held that 'the word 'detains' implies some act on the part of the accused by which the woman's movements are restrained.' In this case it has been further held that 'Detention cannot include persuasion by means of blandishments or similar inducements, which would leave the woman free to go if she wished'. As against this, in the Allahabad judgment referred to above it has been held that 'detention may be brought about even by blandishments and allurements,' In - 'Emperor v. Mahiji Fula' AIR 1933 Bom 489 (E), it has been held that 'detention need not be necessarily by physical force; it may be by persuasion, or by allurements and blandishments.' The view that detention cannot include persuasion by means of blandishments etc., taken in 'AIR 1939 Lah 295 (D)', does not receive any support from the other authorities produced before me. Even the Lahore High Court has in an earlier authority reported asi - 'Mohammad Aslam Khan v. Emperor' AIR 1937 Lah 617. (F), taken the view that

Where the accused entices away the wife of the complainant and provides her with shelter in another town, such providing of shelter by the accused for the wife of the complainant is an inducement to her to withhold herself from her husband. Such conduct on the part of the accused would be sufficient to bring him within the purview of Section 498, Penal Code.

3. A reference to the various authorities that have been produced by the counsel on behalf of the parties would show;

(a) That the detention of a married woman may not be necessarily brought about by the exercise of physical force,

(b) That the detention of a woman may be-brought about by mere persuasion, allurements,, blandishments etc.,

(c) There is some authority for holding that if a woman of her free will goes to reside with a person, because of her having fallen in love with. him, the person with whom she lives cannot be said to detain her: more so if the woman is a free agent to leave him any time she chooses.

On the basis of the above authorities the learned Counsel for the applicants vehemently' argued that the husband of the woman having been left behind in the Pakistan held territory where he was kept in detention by the Pakistan authorities and the woman accused having lost all hopes of meeting her husband about whom she did not know as to whether he was living or dead, she of her own free will went to reside with accused 1, and as such neither of the accused can be held to be guilty Under Section 498 (Ranbir Penal Code).

4. There would have been considerable force in the argument advanced by the accused applicant's learned Counsel, but for the fact that Section 498 as it obtains in this state is materially different from Section 498, IPC In Section 498, R. P. C, it is specifically laid down that in an offence Under Section 498, R. P. C., the woman shall be liable to be punished as an abettor. It may be stated here that according to the Indian Penal Code (S. 497), the wife shall not be punishable as an abettor in the case of adultery. But in Section 498, IPC there is no such provision, that is to say, it has been left an open question as to whether or not a woman is to be treated as ' an abettor in a case Under Section 498, IPC It has however been noted in some authorities that it would be inconsistent to punish a woman as an abettor of the minor offence mentioned in Section 498, when for the offence of adultery which is a graver offence, she cannot be convicted as an abettor. Gour in his stupendous treatise on the Indian Penal Code has significantly remarked that

in spite of the absence of express exemption from being dealt with as an abettor, a woman must be treated as exempt, because an offence Under Section 498, IPC is as compared to adultery (S, 497, IPC) a minor offence and it will be inconsistent to exempt her from the one without exempting her from the other.

From this it would follow that the spirit of law as it obtains in India is not in favour of hauling up a woman as an abettor Under Section 498, IPC This joint came up in an early Madras ruling reported as - 'In re Balambad', 26 Mad 463 (G), in which it has been held that

Where a man has been convicted of enticing away a woman Under Section 498, IPC the woman who was enticed away by him cannot be guilty as an abettor.

The result is that neither in an offence Under Section 497, IPC nor Under Section 498, IPC, has a woman been treated as an abettor.

5. But whatever the controversy in India, there is no room for any in this State, because of the simple fact that here the woman can be held guilty of abetting of an offence Under Section 497 or Section 498. R. P. C. As noticed in 'AIR 1937 Bom 186 (A)', though an elopement which was the result of joint adventure and 'in which the motive force was mutual affection' was not held by their Lordships of the Bombay High Court to come within the purview of Section 498, I, P. C., yet a joint adven-:ure in this State by a married woman with a lover would, in view of the addition to Section 498, R. P. C, that in such cases the woman would be guilty as an abettor, certainly come within the mischief of Section 498, R. P. C. If a married woman whose husband is living were to elope with another person, both of them will be guilty Under Section 498, R. P. C. The fact that the woman with her own free will has chosen to stay with the accused and that she is a free agent to leave him any moment she likes, would make not the slightest difference in this State, since the wife is also liable to be dealt with as an abettor.

6. In the present case we find that both the accused are living together as husband and wife. Both of they are willing agent for living with each Other. In other words it is a joint adventure and according to law as obtains in this State, both of them are punishable. Under these circumstances, I do not find any force in this Revision application. The woman has proved herself faithless to her husband who was in distress in a foreign country. Taking him for dead, she started on fresh adventures. The sentences of four months & two months awarded to accused 1 and 2 respectively cannot under the circumstances be treated as excessive. This Revision application is rejected.


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