In Re: Akkirayu Sanyasi

Govinda Menon, J.—The petitioner was convicted by the Stationary Sub-Magistrate of Anakapalle of an offence u/s 498, Indian Penal

Code and sentenced to rigorous imprisonment for three months. The conviction was upheld in appeal by the Sub-Divisional Magistrate of

Vizagapatam, who reduced the sentence to a fine of Rs. 200 out of which a sum of Rs. 100 was ordered to be paid to the complainant as

compensation.

Mr. Venkatesam appearing for the petitioner has raised two points in support of his application. The first of them is that from the evidence it can

be discerned that the wife of the complainant who, it is alleged, had been taken away or enticed by the petitioner, had already been discarded by

the complainant sometime ago, and therefore if she had gone and lived with the petitioner as his wife either as a result of inducement or request

made by the petitioner or of her own free-will and volition which were aided by the petitioner, it cannot be said that an offence u/s 498 has been

committed. In support of this contention reference was made to the evidence of P.W. 6 who in cross-examination says that the complainant

abandoned his wife and went away to another village for two years. From this statement it is sought to be argued that at the time of the alleged

enticement or taking away the woman was not under the protection of the complainant at all and that therefore the element necessary to constitute

an offence u/s 498 is absent. From the evidence of P. Ws. 1, 2 and 3 and others it is clear that the alleged enticement or taking away took place

only three months before the complaint, but according to the evidence of P.W. 6, the abandonment and going away were two years ago. P. Ws. 1

to 3 as well as other witnesses including P. Ws. 8 and 9 say that at the time the petitioner and the woman went from their villages, the woman was

under the protection of the husband. There is some evidence also that she was living with her father. This portion of the evidence has been

accepted by the lower Court, and I can find no justification for holding that at the time the woman left her village she was not under the protection

of the complainant. It seems to me that the findings of fact on this aspect of the case have to be accepted, especially since nothing can be said

against the evidence of those witnesses. I therefore find it difficult to accept the contention raised by the learned Counsel that the woman had been

abandoned by the complainant.

The other question which has been rather elaborately argued at the Bar is whether the elements constituting an offence u/s 498 can be held to be

present in the present case. It is conceded however by the Public Prosecutor and by the learned Counsel appearing for the complainant that from

the evidence it cannot be said that there was any case of enticement in the strict sense of the terms. The word "" enticement "" necessarily connotes

that some kind of persuasion or allurement was held out by the person who imposed either his will or power upon a woman. There is no evidence

whatever that the petitioner was seen offering any inducement; nor is it suggested that the petitioner placed before the woman any false impressions

of his status or what he would do to benefit her. In these circumstances, if the matter had stood there it would be very difficult to confirm the

conviction of the petitioner.

But then, the wording of the section makes it clear that in order that a person should be made liable for an offence under that section it is not

necessary that there should be any enticement. All that is required is that if any person "" takes away "" another man''s wife with the intent that she

may have illicit intercourse with him, then the offence is completed. What then is the meaning of the word "" takes."" The fact that the word "" takes

is put in juxtaposition with "" enticing away "" shows that the Legislature intended that the circumstances attending the two are quite different. In

Hossaini Methor Vs. Emperor, , Henderson and Biswas, JJ., had to consider the meaning of this term. Biswas, J., was of the view that there must

be some influence operating on the woman, or co-operating with her inclination at the time the final step was taken which caused a severance of

the woman from her husband, for the purpose of causing such step to be taken. On the facts of that particular case it was held that there was no

taking away. This decision was followed in Mahadeo Rama v. Emperor AIR 1943 Bom. 179, by Beaumont, C.J., sitting with Sen, J. The learned

Chief Justice agreed with the view taken by Biswas, J. and came to the same conclusion.

Having carefully read both these cases it seems to me that the facts in those cases are very different from what are contained in the present case.

I do not think that from the evidence of the witnesses it is possible to infer that the woman went with the petitioner out of her own will and not as a

result of any act done by the petitioner. There is a clear finding of fact by the lower Courts accepting the evidence of the various witnesses, that the

woman went away from a place where she had gone to gather firewood after the petitioner had gone there and spoken to her. In the very nature of

things it is not possible to say what exactly were the words which the petitioner used towards the woman; but from the attendant circumstances

and the previous attitude taken by the petitioner as well as his subsequent conduct the lower Courts were perfectly justified in inferring that the

petitioner took away the woman with him. This circumstance is made clearer by the fact that though the parties belonged to a village in

Vizagapatam district the petitioner and the woman were seen, three months later, in a village in the West Godavari district, and, as the lower

Courts find, she was with him living in a distant place even at the time when this petition was filed. From these facts the only inference to my mind

that can be drawn is that it was as a result of some action taken by the petitioner that the woman went with him.

My attention was invited by Mr. Venkatesam to a decision in Ram Narayan v. Emperor ILR (1937) Bom. 244. Having carefully perused that

decision I do not find that the principles enunciated there can be applicable to this case in any way. Moreover in that case Broomfield, J., was of

the view that the complaint itself was not a proper one. There were other matters on which the Bombay High Court came to the conclusion that the

petitioner there neither took away the woman nor enticed her. I do not think that that decision is any authority for holding that in circumstances like

the present case no offence is committed.

Before leaving this case I must take exception to a passage in the judgment of the lower appellate Court in the following terms:

The ties of matrimonial alliance in some of the lower status of the community to which the parties belong are not very strictly observed....

I am constrained to observe that this sentence is absolutely unwarranted. The lies of matrimonial alliance are strictly observed as much in the lower

status of society as in highplaced and fashionable society. The learned Magistrate was certainly not justified in making such a wide observation.

In the circumstances of the case and considering the fact that the complainant himself was to some extent responsible for the way in which the

woman behaved I do not think that a fine of Rs. 200 is called for. I reduce the fine to Rs. 50 and cancel the amount of compensation ordered to be

paid to the complainant.