KRUSHNA CHANDRA PATRA Vs. TANU PATRA

JUDGEMENT

(1.) THE respondent who stood trial Under Sections 497 and 498IPC along with one Sukadeb Patra who had been charged Under Section 109 IPCat the instance of the appellant having been acquitted, this appeal has beenpreferred. The appellant filed the complaint alleging that he had married oneIchhabati Patra on 24 -4 -1977 and while they were living as husband and wife, shewas brought by Sukadeb Patra, her father, on 2 -10 -1978 and was not sent there -after to her marital home. The appellant attempted on some occasions to bringher back but however she was not sent by her father and instead was given inmarriage to the respondent on 15 -2 -1982. The appellant learning this tooksome time to collect evidence as to the marriage and filed the complainton 11 -3 -1982. During the trial the appellant was examined as PW -1 andthree other witnesses were also examined on his behalf. The learned Magistrateanalysing the evidence came to hold that Ichhabati had indeed been marriedto the appellant but even though the respondent and Icchabati were living ashusband and wife, yet the offence Under Section 497 IPC was not established asthe gist of the offence being sexual intercourse with another's wife and is therespondent was having such intercourse with -his own wife, he was not guiltyof the offence. The learned Court did not give any finding as regards theoffence Under Section 498 IPC. Assailing the judgment, the learned Counsel for theappellant urges that since the learned Magistrate found Ichhabati to be thelawfully wedded wife of the appellant and the respondent to have marriedher with full knowledge that she was the wife of the appellant, and since theywere living as husband wife and the fact of their illicit intercourse was alsoaccepted by the learned Magistrate, there was no escape from a convictionUnder Section 497 IPC. He however frankly concedes that there was no materialto sustain the charge Under Section 498 IPC. It is the submission of Mr. Dhal,learned Counsel for the respondent, that even accepting such facts as are foundby the learned Magistrate, yet the offence Under Section 497 IPC is not made outsince the appellant by his conduct must be held to be guilty of connivance asregards the relationship of the respondent and Ichhabati and hence in termsof the section the offence cannot be said to have been made out. It is hissubmission that in a case of prosecution for adultery, one of the essentialingredients to be proved by the prosecution is that the sexual intercourse of thespouse in question with another person is not with the consent or connivanceof that person and since such factor has not been established, no culpability canbe attached to the respondent. For an appreciation of the submission, Section 497IPC is relevant to be extracted :

(2.) A plain reading of the Section makes it clear that the offendingsexual intercourse so as to become liable for conviction must have been madewith the knowledge that the woman is the wife of another and that suchintercourse has been made without the consent or connivance of that person.It is thus incumbent upon the prosecution to establish the fact of absenceof connivance of the husband. The view is supported by AIR 1,953 Mad. 422(in re C.S. Subramaniam).

(3.) IN Stroud's Judicial Dictionary, Fourth Edition, Vol. 1, the word'connivance' has been shown to mean as the willing consent to a conjugaloffence (in the sense of being an accessory before the fact), or a culpableacquiescence in a course of conduct reasonably likely to lead to the offencebeing committed.