CHANDRA BAHADUR SUBBA Vs. STATE

JUDGEMENT

(1.) Having heard Mr. N. B. Kharga, learned Advo- cate for the accused-appellant, and the learned Advocate-General appearing for the State, both of whom have taken us through the entire record, we have no manner of doubt that the appeal must be allowed and the judgment and order under appeal must be set aside.

(2.) The accused-appellant has been convicted Under Section 497, Indian Penal Code, for allegedly committing adultery with the woman said to be married to the complainant, and also Under Section 498, Indian Penal Code, for allegedly detaining the said woman with intent to have illicit intercourse with her.

(3.) Both the Sections 497 and 498 form part of Chapter XX of the Indian Penal Code, which is headed as "Of Offences relating to Marriage" and the question of marriage, its facturn and legality, are of utmost importance in all cases under these Sections. The law on the point appears to be well-settled for about last hundred years since the decision of the Full Bench of the Calcutta High Court in Empress v. Pitambur Singh decided in ((1879) ILR 5 Cal 566) where Garth, C. J., delivering the judgment of the Full Bench, observed that "the marriage of the woman is essential element of the crime charged as the fact of illicit intercourse and the provisions of the Evidence Act (Section 50) seem to point out very plainly that where the marriage is an ingredient in the offence, as in bigamy, adultery and the enticing of married women, the fact of the marriage must be strictly proved in the regular way." The observations in this case apply equally to a case of adultery Under Section 497, Indian Penal Code, as well as to enticing of married woman Under Section 498, both of which require the same strict proof of marriage.