MUNIR Vs. KING-EMPEROR

JUDGEMENT

(1.) The accused Munir has been convicted of offences under Secs.494 and 497 of the Indian Penal Code and sentenced on each charge to rigorous imprisonment for one year. The sentences are concurrent. The case is somewhat unfortunate. Mt. Ganga Kuar was the wife of Har Gobind. She was married about 5 or 6 years ago, when she was a minor. She was brought by her husband to his house in Ghanshiampur. He did not thereafter allow her to go to the house of her parents, because it is said, her parents had not paid the dowry, which had been settled for the marriage. The accused was in the service of Har Gobind and his duty was to act as chaukidar and keep watch outside his house. On the night of the 30 of October 1922, Har Gobind was away from his house. When he came back he found his wife, Mt. Ganga Kuar, not in the house; and his servant Munir was also absent. He made a report at the Powayan police station next morning that his wife was missing and that she had bean enticed away by Munir. Mt. Ganga Kuar states that Munir told her that her brother was at the door and wanted her and that she went out with Munir but did not find her brother. She enquired where her brother was; and her story is that Munir and his brother Shahzade told her to go with them and that they would take her to the house of her mother. She goes on to say that she was taken from there to different places and ultimately to the house of Amir, a brother-in-law of Munir in Bilsanda, where Munir and she stayed for a month. Amir is stated to have afterwards turned out both of them. They then shifted to the garden of Tika Ram where Munir took employment. She was ultimately arrested at Bilsauda on the complaint of her brother Ganga Sahai on the 24 of December 1924. Meanwhile she had two children by Munir, one of whom died and the other a baby seven months old, is still alive. After her recovery a complaint was filed by Har Gobind on the 3 of December 1921, stating that she had been kidnapped by Munir with the help of certain other persons and that Munir had done so with the object of having illicit intercourse with her and further stating that Munir had wrongfully kept and confined her and carried on sexual intercourse with her against her will.

(2.) Mt. Ganga Kuar was sent for medical examination and the opinion of the Sub- Assistant Surgeon who examined her was that she was about 16 years old. In the complaint filed by Har Gobind, Munir was charged with offences under Sections 366, 497 and 498 of the Indian Penal Code. Daring the enquiry before the committing Magistrate Munir stated that he found the girl roaming about in the Bilsanda Bazar about three years ago and that the girl said that she had been enticed away by some one from the house of her husband. He admitted that he had taken her to his house and celebrated his nikah with her and kept her as his wife. The learned Sessions Judge took further evidence about the age of the girl and examined Dr. Shambehari Lal, the Civil Surgeon of Shahjahanpur, who stated that the girl appeared to be about 17 years old and that her development was compatible with the age of 20 years. He accordingly acquitted the accused of an offence under Section 366 of the Indian Penal Code but convicted him under Secs.494 and 497, Indian Penal Code.

(3.) The question for consideration here is whether the charge under Section 494 of the Indian Penal Code can be maintained without an express complaint by the husband to that effect and whether in the circumstances established Hargobind had not connived at the adultery of his wife with the accused. It is also urged that there was no proof of any lawful marriage between Munir and the girl inasmuch as the statement of the girl was that she had not consented to the re-marriage, and that the trial Court had no jurisdiction to entertain the complaint or to enquire into the charges of which the accused had been convicted.