RAM CHANDRA BHAGATversusSTATE OF JHARKHAND

                   [2010] 13 (ADDL.) S.C.R. 1094


A                     RAM CHANDRA BHAGAT
                                   v.
                     STATE OF JHARKHAND
             (Criminal Appeal No(s). 439 of 2006 etc.)
                        NOVEMBER 24, 2010
B
    [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

         Penal Code, 1860:

c         s. 393 - Cohabitation caused by a man deceitfully
    inducing a belief of lawful marriage - Complainant and
    accused lived together for nine years and had two children -
    Accused stated to have turned the woman out of his house -
    Complaint by the woman that accused had given her
0   assurance to marry her and even executed an agreement to
    this effect - Conviction by trial court - Upheld by appellate
    court as a/so by High Court - HELD: Per Katju, J - When
    the complainant's own case is that the accused had as.<;ured
    her that he will marry her, it is obvious that she was not under
E   any belief that she was already married to him - A criminal
    statute has to be construed strictly -Unless all its ingredients
    are satisfied the person cannot be punished, otherwise, there
    will be violation of Articles 20(1) and 21 of the Constitution of
    India - In the instant case, as the ingredients of s. 493 are
    not satisfied, the appellant is entitled to acquittal - Per Gyan
F   Sudha Misra, J - The specific issue with which the Court is
    confronted with in the instant appeal is confined to the
    question as to whether the judgments and orders of the trial
    court, first appellate court and the High Court, which have
    concurrently held the appellant guilty of an offence u/s 493,
G   under the facts, circumstances and evidence of the case, are
    fit to be sustained or not - Ingredients of s.493, explained -
    There is overwhelming evidence, that the victim and the
    accused had cohabited for long nine years and during this
    period, the accused had also executed an agreement of
H                                   1094
RAM CHANDRA BHAGAT v. STATE OF JHARKHAND1095


marriage and in addition had filed an application for                 A
registration of their marriage under the Special Marriage Act
- Besides, in several official documents which are the voter
lists of the constituency concerned for several years
consecutively, she had been shown to be the wife of the
accused - Thus, there was sufficient documentary evidence             B
to induce a belief to the complainant that she had been
lawfully married to the accused although they had not been
married according to the rituals - s. 493 does not presuppose
a marriage between the accused and the victim necessarily
by following a ritual or marriage by customary ceremony -             c
What has been clearly laid down and emphasized is that there
should be an inducement of belief in the woman that she is
lawfully married to the accused, and the inducement of belief
of a lawful marriage cannot be interpreted so as to mean or
infer that the marriage necessarily had to be in accordance
                                                                      0
with any custom or ritual or under Special Marriage Act - If
the evidence on record indicate inducement of a belief in any
manner in the woman which cannot possibly be enlisted but
from which it can reasonably be inferred by ordinary prudence
that she is a lawfully married wife of the man accused of an
offence uls 493, the same wt11 have to be treated as sufficient       E
material to bring home the guilt u/s 493 ...: Interpretation of the
 Section in any-other manner including an assertion that the.
marriage should have been performed by customary rituals
or in similar manner only in order to establish that a belief of
marriage had been induced, is bound to frustrate the very             F
object and purpose of the provision for which it has been
incorporated in the Penal Code which is clearly to prevent the
deceitful act of a man inducing the belief of a lawful marriage
for the purpose of cohabitation merely to satisfy his lust for
sexual pleasure - Ingredients of s. 393 are clearly fulfilled in      G
the case.

     By the Court: Since there is a difference of opinion, the
matter be placed before the Chief Justice of India for sending
it .before another Bench.                                             H
    1096 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A        Moideenkutty Haji and others Vs. Kunhikoya and others,
    AIR 1987 Kerala 184; and Dr. A.N. Mukerji Vs. State, IR 1969
    Allahabad 489 - referred to.

        Case Law Reference:
B       AIR 1987 Kerala 184         referred to           para 14
        AIR 1969 Allahabad 489 referred to                para 14

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 439 of 2006.
c
        From the Judgment & Order dated 08.09.2005 of the High
    Court of Jharkhand at Ranchi in Cr. Rev. No. 788 of 2005.

        Deba Prasad Mukherjee for the Appellant.

D       Ratan Kumar Chaudhar! for the Respondent.

        The following orders of the Court was delivered

                               ORDER

E       Per Hon'ble Mr. Justice Markandey Katju

        1. Heard learned counsel for the parties.

         2. The separation of law from morality by the British
    positivist jurists Bentham and Austin was a great advance in
F   legal history.

       3. The oft quoted story in this connection is of the famous
  Lord Chancellor of England Sir Thomas More (1478-1535) who
  once went for a walk on a street in London with his daughter
G Margaret and her husband Roper. On seeing a man running
  on the street Margaret told Sir Thomas "Father, get that man /
  arrested".

        When Sir Thomas asked why, she replied "Because he is
    a bad man."
H
RAM CHANDRA BHAGAT v. STATE OF JHARKHAND1097
          [MARKANDEY KATUJ, J.]
    Sir Thomas then asked "But which law has he broken?"                A
to which she replied "He has broken the law of God".

   Sir Thomas then said "Then let God arrest him. I arrest a
man only if he has broken a law of Parliament."

      4. Often an act may be regarded as immoral by society,            B
but it may not be illegal. To be illegal the act must clearly attract
some specific provision of the Penal Code, or some other
statute. This case illustrates the point.

     5. This appeal has been filed against the impugned                 C
judgment and order of the High Court of Jharkhand dated
8.9.2005. By the impugned judgment the appellant's conviction
under Section 493 IPC by the trial Court has been upheld.

     6. Section 493 of the Indian Penal Code states as under:-
                                                                        0
     "Section 493. Cohabitation caused by a man deceitfully
     inducing a belief of lawful marriage - Every man who by
     deceit causes any woman who is not lawfully married to
     him to believe that she is lawfully married to him and to
     cohabit or have sexual intercourse with him in that belief,        E
     shall be punished with imprisonment of either description
     for a term which may extend to ten years, and shall also
     be liable to fine."

      7. The facts of the present case are that the complainant
                                                                        F
was employed in the Sub Divisional Agriculture office General)
at Lohardaga in the year 1981. She got acquainted with the
appellant herein and they developed intimate relationship so
much as that for nine years they cohabited together and had
two children - a son and a daughter. Thereafter, it is alleged          G
that the appellant turned the lady out of his house.

     8. The complainant alleged that the appellant had given her
assurance to marry her and even executed an agreement to
this effect on 4.6.1990. The appellant has disputed this
agreement.                                                              H
    1098 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A      9. There is no finding by the courts below that by deceit
  the appellant caused the complainant to believe that she is
  lawfully married to him. Rather the allegation of the complainant
  is that the appellant assured her that he would marry her and
  even entered into an agreement to that effect, though that
B agreement has been disputed. When the complainant's own
  case is that the accused had assured her that he will marry
  her it is obvious that she was not under any belief that she
  was already married to him.

C       10. Section 7 of the Hindu Marriage Act, 1955 reads as
    under:-

        "Section 7. Ceremonies for a Hindu Marriage -

          (1)   A Hindu marriage may be solemnized in
D               accordance with the customary rites and
                ceremonies of either party thereto.

          (2)   Where such rites and ceremonies include the
                saptpadi (that is, the taking of seven steps by the
                bridegroom and the bride jointly before the sacred
E               fire), the marriage becomes complete and binding
                when the seventh step is taken."

        11. Thus a Hindu marriage can be solemnized in
  accordance with the customary rites and ceremonies of either
F the boy's caste or the girl's caste (if it is an inter-caste Hindu
  marriage). There is no allegation that the appellant entered into
  a marriage with the complainant in accordance with Section
  7(1) of the Hindu Marriage Act, rather the allegation is that he
  promised to marry her in future. There is also no a/legation that
G the appellant deceived the complainant into believing that they
  were lawfully married e.g., by getting a ceremony performed
  other than that referred to under Section 7(1) or by a purp_orteg
  civil marriage not in accordance with the Special Marriage Act.
  Hence, in my opinion, the ingredients of Section 493 IPC are
H not satisfied.
RAM CHANDRA BHAGAT v. STATE OF JHARKHAND 1099
          [MARKANDEY KATUJ, J.]

      12. It is true that the appellant has not behaved like a       A
gentleman, He lived with the complainant for nine years and had
two children by her, and hence as a decent person he should
have married her which he did not do. However, there is a
difference between law and morality, as already stated above.
There are many things which are regarded by society as               B
immoral but which may not be illegal. If we say something is
illegal then we must point to some specific section of the Indian
Penal Code or some other statute which has been violated.
 Merely saying that the person has done something improper
will not necessarily make the act illegal.                           c
     13. There is a story of two of the greatest figures in law,
Justice Holmes and Judge Learned Hand who once had lunch
together. Afterwards, as Holmes began to drive off in his
carriage, Hand, in a sudden onset of enthusiasm, ran after him,
crying "Do justice, Sir, do justice." Holmes stopped the carriage    D
and reproved Hand : "That is not my job. It is my job to apply
the law." (see 'The Tempting of America', by Robert Bork).
    14. In the present case it can be said that the appellant
has not behaved like a decent man but, in my opinion, Section
                                                                     E
493 IPC is not attracted. The view I have taken is supported
by the decisions in Moideenkutty Haji and others Vs.
Kunhikoya and others, AIR 1987 Kerala 184 and Dr. A.N.
Mukerji Vs. State, AIR 1969 Allahabad 489.
       15. A criminal statute has to be construed strictly. Unless   F
all its ingredients are satisfied the person cannot be punished,
otherwise there will be violation of Articles 20(1) and 21 of the
Constitution. In the present case since the ingredients of Section
493 are not satisfied the appellant is entitled to acquittal.
    16. However, since my learned sister Hon'ble Mrs. Justice        G
Gyan Sudha Misra has a different view, let the papers of this
case be placed before Hon'ble the Chief Justice of India for
sending the matter before another Bench.

                                                                     H
     1100 SUPREME COURT REPORTS [2•"1 OJ 13 (ADDL.) S.C. R.


A          GYAN SUDHA MISRA, J. 1. Having perused the order
     of my learned Brother Katju, J. in this appeal, I respectfully take
     a different view from the one expressed therein which holds that
     no offence under Section 493 IPC is made out against the
     appellant under the facts and circumstances of this case. While
 B   there is no difficulty in accepting the position that law and
     morality might stand on a different footing although they are
     inextricably linked in my perception, yet I agree that legal
     decision cannot b~ based purely on morality. However, the
     specific issue with which we are confronted with in this appeal
,c   is confined to the question as to whether the judgment and order
     of the trial court, first appellate court and the High Court which
     have concurrently held the appellant guilty of an offence under
     Section 493 IPC under the facts, circumstances and evidence
     of this case are fit to be sustained or not. For this purpose, I
     have meticulously perused Section 493 IPC which for facility
 0
     of reference and relevance, is quoted herein as follows:-
          "493. Cohabitation caused by a man deceitfully inducing
          a belief of lawful marriage. -Every man who by deceit
          causes any woman who is not lawfully married to him that
 E        she is lawfully married to him and to cohabit or have sexual
          intercourse with him in that belief, shall be punished with
          imprisonment of either description for a term which may
          extend to ten years, and shall also be liable to fine."
       2. A perusal of the aforesaid Section, clearly indicates that
·F every man who by deceit causes any woman who is not lawfully
   married wife and goes to the extent of cohabitation and also
   has intimate physical relationship with her and the woman
   submits to that man in the belief that he is his lawfully married
   husband, then in my considered opiniorl, the offene-e under
 G Section 493 IPC can be clearly held to have been made out
   against the accused.
        3. As already indicated in the order of my learned Brother
   Katju, J., the accused/appellant had been living with the victim
   lady for a period of nine years like a normal couple which fact
 H has been admitted by the appellant and out of their relationship,
RAM CHANDRA BHAGAT v. STATE OF JHARKHAND1101
         [GYAN SUDHA MISRA, J.]

they also had two children. It could be further noticed that the       A
accused/appellant during this continuance of relationship, had
also filled up an application for information to Special Marriage
Officer, Lohardaga under Section 5 of the Special Marriage Act
regarding marriage on 13.04.1982 marked Ex.3. In addition to
this, the accused/appellant had also executed an agreement             B
for marriage certificate on 04.06.1982 on stamp paper of
Rs.1.50 paise and admitted therein that he is living a normal
family life as a married couple with the complainant Sunita
Kumari for the last one year (which was the duration of
relationship at the relevant time) and Sunita Kumari is his wife,      c
which document has been marked as Ex.2. Further, voter list
of Booth No.25 of Village Bethathat of the assembly electoral
list of Lohardaga (S.T. constituency) for the year 1984 marked
 Ex.6, further voter list of the same village Bethathat for the year
 1988 marked Ex.6/1 and still further voter list of the year 1993      D
of the same Village Bethathat marked Ex.6/2 indicate that the
 complainant Sunita Devi was shown as wife of Ram Chandra
 Bhagat. All these documents had been in existence to the
 knowledge of the accused/appellant Ram Chandra Bhagat
wherein he accepted her as his wife in writing in presence of          E
the witnesses namely Anant Kumar Das (PW-1), Laxmi Bhagat
 (PW-3), Tiwari Bhagat (PW-4), Birbal Bhagat (PW-5) and Sunil
 Kumar (PW-6). These witnesses appeared in the Court and
 supported the relationship of the accused/appellant Ram
 Chandra Bhagat with the complainant Sunita Kumari being
 husband and wife who lived together at different places of            F
 posting in course of service of the accused/appellant as B.D.O.,
 particularly at Churchur Block in the District of Hazaribagh
 (Jharkhand) and in course of their cohabitation, a son was born.
 The accused/appellant had also solemnized the birth ceremony
 of their daughter and son alongwith the friends.                      G

    4. Thus, there were strong documentary evidence in
support of the prosecution case that the accused/appellant
deceitfully induced a belief of lawful marriage in the mind of the
complainant victim lady that they were lawfully married so that        H
    1102 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A she continued to live with the appellant as wife treating him to
  be her husband for more than nine years but the appellant later
  refused to -accept her as his wife and drove her out. The
  appellant thus llad deceitfully induced the complainant Sunita
  Kumari to believe that she was lawfully married to him as he
B had executed an agreement for issuing marriage certificate
  (Ex.2) and also filled up application form to submit before the
  Special Marriage Officer (Ex.3) to give assurance to her. It is
  further on record that although no ceremony of marriage took
  place between them, but as per social custom prevailing in the
c District of Lohardaga among the members of the Oraon
  community, if a young man lives with a young girl in his house
  for a long period, she is deemed to be his wife which is
  recognized as marriage. Thus, in view of the oral and
  documentary evidence on record, the ingredients under Section
  493 IPC is well established and the offence under the said
0
  Section is clearly made out against the appellant. Hence, even
  though the appellant and the complainant victim lady Sunita had
  not been married by performing any ritual, the evidence on
  record clearly indicate that there were overwhelming material-
  documentary evidence as well as customary practice to induce
E a belief to the victim lady Sunita who could infer that she was
  lawfully married to the accused/appellant with whom she
  cohabited and also had physical relationship out of which the
  two children had been born.

F       5. We have to bear in mind that the three ingredients
    necessary to be established for bringing home the offence
    under Section 493 IPC are:-

         (i)     the accused practiced deception;

G        (ii)    such deceit was to induce a woman (complainant)
                 to believe that she was lawfully married to him; and

         (iii)   there was cohabitation or sexual intercourse as a
                 result of the deception.
H
RAM CHANDRA BHAGAT v. STATE OF JHARKHANDl 103
         [GYAN SUDHA MISRA, J.]
     6. In my humble opinion, the aforesaid three ingredients            A
for the offence· under Section 493 IPC in the light of the
evidence recorded hereinbefore, are clearly fulfilled in the
present case.

     7. It is no doubt true that the essence of an offence under         B
this section consists in the practice of deception by a man on
a woman, in consequence of which she is led to believe that
she is lawfully married to him while in fact she is not lawfully
married to him. Thus, what is required is that, by deceitful
means, the accused must induce a belief of a lawful marriage             C
and then make the woman cohabit with him. But Section 493
although emphasizes that the victim woman should be induced
the belief that she is lawfully married to the accused, this
 Section also lays emphasis on deceit caused by the man who
is not lawfully married to the victim and mere inducement of
belief of a lawful marriage is sufficient to establish the guilt under   D
Section 493 of the IPC.

      8. In so far as the ingredients of a valid marriage under
the Hindu Marriage Act, 1955 is concerned, we have to bear
in mind that we are not dealing with a case herein where the E
victim lady is claiming a civil remedy viz. the right of inheritance,
merely on the basis of her cohabitation with the accused/
appellant asserting it as a lawful marriage. What we are
confronted to deal with in this matter, is whether the ingredients
of criminal offence under Section 493 IPC can be held to have F
been made out so as to hold the accused/appellant guilty of
an offence under Section 493 IPC despite the overwhelming
evidence, that the victim lady and the appellant had openly
cohabited for long nine years and during this period, the
accused/appellant had also executed an agreement of G
marriage and in addition had filed an application for registration
of their marriage under the Special Marriage Act. Besides this,
in several official documents which are the voter lists of the
concerned consecutively constituency for several years, she had
been shown to be the wife of the accused/appellant. Thus, there
                                                                      H
    1104 SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.


A   were sufficient documentary evidence to induce a belief to the
    complainant lady that she had been lawfully married to the
    accused/appellant although they had not been married.
    according to the rituals.

B         9. Section 493 IPC in my opinion do not presuppose a
    marriage between the accused and the victim necessarily by
    following a ritual or marriage by customary ceremony. What has
    been clearly laid down and emphasized is that there should be
    an inducement of belief in the woman that she is lawfully married
    to the accused/appellant and the inducement of belief of a lawful
C   marriage cannot be interpreted so as to mean or infer that the
    marriage necessarily had to be in accordance with any custom
    or ritual or under Special Marriage Act. If the evidence on
    record indicate inducement of a belief in any manner in the
    woman which cannot possibly be enlisted but from which it can
D   reasonably be inferred by ordinary prudence that she is a
    lawfully married wife of the man accused of an offence under
    Section 493 IPC, the same will have to be treated as sufficient
    material to bring home the guilt under Section 493 IPC.
    Interpretation of the Section in any other manner including an
E   assertion that the marriage should have been performed by
    customary rituals or in similar manner only in order to establish
    that a belief of marriage had been induced, is bound to frustrate
    the very object and purpose of the provision for which it has
    been incorporated in the Indian Penal Code which is clearly to
F   prevent the deceitful act of a man inducing the belief of a lawful
    marriage for the purpose of cohabitation merely to satisfy his
    lust for sexual pleasure.

       10. Hence, I have not been able to persuade myself to
G concur with the view taken by Brother Katju, J. This appeal
  therefore will have to be placed before the Hon'ble Chief
  Justice of India for referring it to the appropriate Bench.

    R.P.                                         Matters adjourned.