D R KUMTHEKAR Vs. STATE

JUDGEMENT

(1.) AFTER stating facts and finding that the woman was a married woman, the judgment proceeded.

(2.) THE next point for consideration is whether Suman was taken or enticed away or concealed or detained by the petitioner with the intention that she may have illicit intercourse with the petitioner. It is abundantly clear again from the statement of the complainant and his son Jayant that the petitioner and Suman were having such illicit intercourse. Jayant's evidence has been reproduced by the appellate Court, He was the son of the complainant and accompanied his mother to Howrah, Calcutta and Cuttack where she lived with the petitioner. According to jayant, at Cuttack Suman and the petitioner were occupying one room and slept on one bed together while he along with a nephew of the petitioner slept outside. Taking into consideration the material on the record, which shows that the petitioner was madly in love with Suman and found it difficult to live without her, clearly goes to show that he was having illicit intercourse with her at Delhi and at other places mentioned above. The only point which requires further consideration is whether when Suman left the house of her husband with her son it amounted to taking or enticing away, or concealing or detaining her by the petitioner. This has been lucidly discussed by the Supreme. Court in Alamgir v. State of Bihar, AIR 1959 SC 436. The head-note on this point runs as under:-"the provisions of Section 498, like those of Section 497, are intended to protect the rights of the husband and not those of the wife. The gist of the offence under Section 498 appears to be the deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her. The consent of the wife to deprive her husband of his proper control over her would not be material. It is the infringement of the rights of the husband with the intention of llicit intercourse that is the essential ingredient of the offence under Section 498. The policy underlying the provisions of Section 498 may, no doubt, sound inconsistent with the modern notions of the status of women and of the mutual rights and obligations under marriage. That, however, is a question of policy with which courts are not concerned. It is no doubt true that if the words used in a criminal statute are reasonably capable of two constructions, the construction which is favourable to the accused should be preferred; but in construing the relevant words it is obviously necessary to have due regard to the context in which they have been used. It is true that the word 'detains' may denote detention of a person against his or her will; but in the context of the section it is impossible to give this meaning to the said word. If the object of the section had been to protect the wife such a construction would obviously have been appropriate, but, since the object of the section is to protect the rights of the husband, it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for her willingness has not detained her. Detention in the context must mean keeping back a wife from her husband or any other person having the care of her on behalf of her husband with the requisite intention. Such keeping back may be by force; but it need not be by force. It can be the result of persuasion, allurement or blandishments which may either have caused the willingness of the woman, or may have encouraged, or co-operated with, her initial inclination, to leave her husband. If the willingness of the wife is immaterial and it cannot be a defence in cases falling under the first three categories mentioned in Section 498, it cannot be treated as material factor in dealing with last category of cases of detention mentioned in the said section. It may be that the wife was dissatisfied with her husband and wanted voluntarily to leave her husband; but where the evidence is that she must have been encouraged or induced not to go back to her husband because she knew that she would find ready shelter and protection with the accused and she must have looked forward to marry him and the accused in fact claimed to have married her, there can be no doubt that he intended to have illicit sexual intercourse with her. If having thus left the house of her husband she came to stay with the accused and he allowed her to stay with him, it can be said that he has "detained' her within the meaning of Section 498. " their Lordships of the Supreme Court lucidly discussed the ingredients of this section and what is meant by the words "enticing", "taking away", "detaining" or "concealing". The same view was taken in Hossaini Methor v. Emperor, AIR 1937 cal 460; Mahadeo Rama v. Emperor, AIR 1943 Bom 179 and Ramaswami Udayar v. Raju Udayar, AIR 1955 Mad 333. (After further discussing evidence, his Lordship concluded:--) These facts and circumstances clearly show that the petitioner had committed the offence punishable under section 498 of the Penal Code. I am, therefore, of the view that the charge has been proved against the petitioner beyond any doubt. Taking, however, into consideration that Suman was a willing party to this unfortunate incident, I feel that the sentence of imprisonment already undergone by the petitioner, which comes to about two months and fifteen days, would be sufficient to meet the ends of justice. I order accordingly. The fine imposed upon the petitioner is, however, maintained.