Ganga Patra vs Emperor

Wort, J.—In this case the applicant was prosecuted and convicted for an offence u/s 497, I.P.C., for having committed adultery with the wife of the complainant knowing her to be the wife of the complainant or having reason to believe the same. He was sentenced to six months rigorous imprisonment.

The only point taken before me is that there was no evidence or finding by either of the Courts below that the woman was a married woman or, in other words, the woman with whom the adultery was committed was the wife of the complainant. u/s 50, Evidence Act, the presumption which arises under the first part of the section as to relationship is particularly excluded in cases in which the relationship of husband and wife is an issue under certain sections including Section 497, I.P.C. In other words, in a prosecution under that section it is necessary to prove strictly the marriage. Now I have no doubt in mind that the principle laid down by Section 50, Evidence Act, is the principle of law which is applicable to matrimonial cases in England and also to prosecutions of bigamy. In other words, in cases of that kind where the relationship of husband and wife comes into question it is necessary to prove strictly that relationship and that matter is always in issue whatever the defence in the petition or the prosecution may be. I mention that because the learned Government Pleader suggests that even though the strictest proof is not given in this case, it is unnecessary by reason of the fact that there was a tacit admission on the part of the accused that the woman was the wife of the complainant. I cannot, however, accede to that proposition of law. If it is conceded, and I think it must be conceded, that in a prosecution under this section the question of marriage must be proved strictly then any inference, tacit or otherwise, will not avail the prosecution if they fail to prove strictly the marriage between the complainant and the woman whose chastity has been violated.

The real question in this case is whether, in the circumstances, the marriage was strictly proved. There is a statement, it would appear, on the part of the woman who was examined by the accused that the complainant was her husband and there was some reference to that relationship in the evidence of the complainant himself. The question is whether those two references to that relationship is a strict proof within the meaning of Section 50, Evidence Act.

The earliest case, which has been called to my attention on this point, is a Full Bench decision in Empress v. Pitambar Singh [1880] 5 Cal. 566. In that case the only evidence of marriage was that of the prosecutor in which he is alleged to have said that " she is my wife by marriage." In that case Garth, C.J., delivering the judgment of the Full Bench stated quite clearly that that did not comply with Section 50, Evidence Act, and a prosecution relied upon evidence of that character must necessarily fail.

The next decision on the point is the case of Sobrati v. Jungli 2 C.W.N. 245. In that case a Mahomedan was the complainant and he alleged a marriage with a certain woman. He stated that he was married to her and a certain ceremony took place hut of the details of that ceremony he was not clear. The Divisional Court in that case decided that the evidence was not sufficient to sustain a prosecution u/s 498, I.P.C. which incidentally necessitates the same proof as u/s 497.

There are also cases in the Allahabad High Court. In the case of Emperor v. Buddhu [1920] 42 All. 401 Sir George Knox decided that the mere statement of the complainant that he was married to a woman in that case was not sufficient to support a prosecution u/s 498.

Another case, to which reference has been made, is Queen-Empress v. Sub barayan [1886] 9 Mad. 9 in which the case reported in Empress v. Pitambar Singh [1880] 5 Cal. 566 was discussed. At first sight that would appear to be a case which differed from the other cases which I have quoted; but upon an examination of the judgment, it is clear that it is a decision which merely dissents from the argument that the Calcutta High Court in the case reported in Empress v. Pitambar Singh [1880] 5 Cal. 566 decided that the parties themselves to the marriage could not give evidence of that fact. The Madras High Court was of the opinion that the case reported in Empress v. Pitambar Singh [1880] 5 Cal. 566 decided nothing of the kind, but although it can be seen from the judgment in the Madras case that the parties them selves can give evidence of their marriage, yet it must be evidence upon which the Court itself can test the question of the validity of the marriage itself, that is to say, can determine the question whether the evidence is a strict proof of the marriage which is alleged. Unfortunately in this case, which is before me, although it appears from the petition of appeal in the Court of appeal below that this was the first ground, of argument on behalf of the petitioner, whether that argument in fact was advanced or not clearly this question must have come to the notice of the appeal Court. But there is no mention of it in the judgment. It is unfortunate that a Court in a case of this kind has not dealt with the one of the most important issues in the case although it may be a merely formal issue. In my judgment in cases of this kind it is necessary for the complainant or some other person in his behalf to give strict proof of the marriage. In countries where a system of registration prevails, it is sufficient for the petitioner or the prosecutor as the case might be, to give evidence of his marriage with the woman who is concerned and produce a certified copy of the register. But in a country like India where no registration prevails, it is necessary to set out the facts and circumstances surrounding the alleged ceremony of the marriage in order to, enable the Court to determine the question whether the marriage in fact took place and whether the relationship of husband and wife in fact existed at the, time of the prosecution. In this case I find a complete absence of anything of that character and having regard to the fact that the evidence is otherwise clearly proved, I reluctantly set aside the conviction and direct that the fine, if paid be refunded.