Kamruddin Sheikh vs State

A.N. Banerjee, J.—This appeal is directed against an order of conviction u/s 493, Indian Penal Code and sentence to (sic) for three years and a fine of Rs. 1,000, in default, to suffer imprisonment for one year thereunder. On May 27, 1969, P.W. 1 Sahida Khatun filed a complaint against the Appellant alleging therein that the accused had cohabited with her by deceitfully suppressing the fact that he had given talak to her and that as such she had ceased to be his lawfully married wife. On such complaint the accused was summoned under Sections 376/493, Indian Penal Code. The accused was committed to the Court of Sessions after an enquiry under chap. XVIII of the Code of Criminal Procedure, 1898, by the learned Magistrate. The charge against him was u/s 493, Indian Penal Code, which runs as follows:

That you between 2.9.69 and 19.4.69 at Khidirpore, P.S. Harihar Para, by deceit caused a certain woman to wit, Sahida Khatun who was not lawfully married to you having ceased to be so married to believe that she was lawfully married to you and in that belief cohabit or have sexual intercourse with you and thereby committed an offence punishable u/s 493 of the Indian Penal Code....

The learned Sessions Judge, Murshidabad, found the accused guilty of the aforesaid offence and convicted and sentenced him as indicated above. Facts which are no longer in dispute may be briefly stated as follows : The accused/Appellant and Sahida Khatun were married according to Mohammedan law on Falgoon 10, 1372 B.S., corresponding to February 22, 1966. After the marriage Sahida Khatun spent about nine months in the house of the Appellant. Thereafter she went to the house of her father P.W. 2 Sahiduzaman. In July/August 1968, she was again taken back to the house of her husband, viz. the Appellant. She lived there up to April 20, 1969, as the wife of the Appellant. On that date she was taken back by the Appellant to the house of her father where she is still residing. At that time she was carrying for about four months as a result from her cohabitation with the Appellant. While at her father's house she received a registered envelope containing a copy of a document j which purported to be talaknama given to her by her husband. As the said document did not mention the date on which her husband had given her talak search was made in the office of the Registrar of Marriage and Divorce and a certified copy of the talak was obtained from there. On obtaining the certified copy the date of talak came to be known to Sahida Khatun as Bhadra 17, 1375 B.S., corresponding to September 2, 1968. On the basis of such facts it was found by the learned trial Judge that although the Appellant had given talak to Sahida Khatun on September 2, 1968, he had cohabited with her by deceitfully suppressing the fact of such talak and that, as such, he was guilty of the offence u/s 493, Indian Penal Code.

The defence of the Appellant was that he belonged to Ahaladis community of the Sunni sect of the Muslim and that this sect recognised only that kind of talak which was pronounced once in each three successive tahar and during the period of which the husband abstained from the exercise of conjugal right with the wife. Therefore, according to the defence talak mogallezai i.e. three talaks as recorded in the marriage register was an invalid and revocable talak. It was further the defence that the Appellant was compelled to give such talak because of the demands made by the father of Sahida Khatun to give some lands to her and that the Appellant never intended to give talak to her and was ever willing to take her back.

Mr. Balai Chandra Ray, learned Advocate, with Mr. Quadrat-e-Kabir appearing for the accused/Appellant contended before us that the prosecution had failed to establish that the accused gave any valid talak to Sahida Khatun and that in any event the ingredients of an offence u/s 493 of the Indian Penal Code were missing in the present case. Mr. Dilip Kumar Banerjee (II), Learned Advocate appearing for the State, supported the judgment of the trial Court.

In our view, the talak in question may be irregular according to theology but is legal and valid in the eye of law. There can be no manner of doubt that before the Marriage Registrar who is the Kazi P.W. 8 Syed Hamidul Hassan three talaks to Sahida Khatun were acknowledged by the Appellant and an entry to that, effect was made, in the Register of Marriages, vide Ex. 2/2.

The divorce called talak may be either irrevocable (bain) or revocable (raja). A talak bain, while it always operates as an immediate and complete dissolution of the marriage bond, differs as to one of the ulterior effects according to the form in which it is pronounced. A talak bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage, either (a) once followed by abstinence from sexual intercourse for the period called the iddat, or (b) three times during successive intervals of purity, i.e. between successive menstruations, no intercourse taking place during any of the three intervals, or (c) three times at shorter intervals or even in immediate succession, or (d) once by words showing a clear intention that the divorce shall immediately become irrevocable. The first named of the above methods is called ahsan (best), the second hasan (good), the third and fourth are said to be bidaat (sinful) but are, nevertheless, regarded by Sunni lawyers as legally valid.

The above principle, as stated by Sir R.K. Wilson in his Digest of Anglo-Mohammadan Law (5th ed., p. 136), was quoted with approval by the Privy Council in the case of Saiyid Rashid Ahmad and Anr. v. Mt. Anisa Khatun and Ors. AIR 1932 PC 25, the Alahadis who are also sometimes called Mahammedis are Sunni Muslims and there is no reason as to why the above law would not be applicable to them. In fact P.W. 9 Rashid Ahamed Siddique who is a lecturer in Islamic Theo logy at the Calcutta Madrasa and who was examined as a witness on the side of the prosecution stated in his evidence that when the record of the Registrar of Mohammadan Divorce records talak mogalleja that talak becomes an effective talak and it is irrevocable. Mogalleja may mean type nevertheless it is effective, binding and irrevocable. The defence wanted to prove through the evidence of one Md. Mahasin, D.W. 1, who is a teacher of a senior Madrasa and also belongs to Ahaladis community that there is some difference between Ahaladis and Hanafis of the Sunni sect regarding the marriage and divorce. According to him, Ahaladis recognises that talak as a valid talak which is given in three successive iddats. By iddat he means tahar which again means the period between two menstruations. But in his cross-examination he admitted that Hajrat Omar is followed by the Ahaladis and he accepted three talaks given in one sitting as effective and valid talak but later on he resiled. He could not show whether by any of the authorities three talaks given in one sitting were considered complete and valid talak or not. This being the nature of the evidence we see no reason to think that talak mogalleja as recorded by the Registrar of Divorce in his book was not effective or valid as alleged by the Appellant. It may be that Sahida Khatun was not present at the time of giving talak to her and that it was communicated to her for the first time when she received the letter per registered post on April 23, 1969. But when a talak in writing is given as in the present case, it need not be made in the presence of the wife and it becomes effective on and from the date when it is made and not from the date of the communication of it to the wife. In this connection, I may with respect refer to a decision of Bombay High Court in the case of Sarabai v. Rabiabai ILR (1906) Bom. 537. In this case a Mohammedan belonging to the Hanafi Sunni sect took with him two witnesses and went to the Kazi and there pronounced but once the divorce of his wife in her absence. He had a talaknama written out by the Kazi which was signed by him and attested by the witnesses. He then took steps to communicate the divorce and make over the iddat money to the wife but she evaded both. He died soon after this. The wife thereupon filed a suit alleging that she was still the wife and claimed maintenance and residence. It was held overruling contention that the divorce should have pronounced three times that the talak-ul-bidaat (i.e. irregular divorce) is good in law though bad in theology. It was further held in answer to the contention that the divorce was not final as is was never communicated to the Plaintiff that a bain-talak reduced to manifest and customary writing took effect immediately on the mere hand-writing. If an authority is needed on the question of the presence of the wife if necessary at the time of talak we may refer to the authority of the Privy Council in the case of AIR 1927 15 (Privy Council) . It is laid down in that case that it is not necessary that the repudiation should be pronounced in the presence of the wife or even addressed to her. The Appellant after giving an irrevocable and valid talak to Sahida Khatun have had no right to urge that he intended to revoke such talak or that he gave such talak in order to avoid the demands for grant of land in favour of the wife. It is equally futile for him to examine some witnesses to show that even after giving talak in one sitting or before the Registrar of Divorce some men of his community were living happily as husband and wife with their spouses. The learned trial Judge has correctly pointed out that the evidence as adduced by the Appellant on the aforesaid point does not deserve any serious consideration. We may, therefore, proceed on the basis that after giving an irrevocable talak to Sahida Khatun, the Appellant lived as husband and wife with her at his house. Even then the question remains whether he committed an offence u/s 493, Indian Penal Code, by such living with Sahida Khatun.

Section 493, Indian Penal Code, runs as follows:

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 behalf shall be punished with imprisonment....

The section contains two ingredients, (i) deceitfully causing a false belief in the existence of a lawful marriage and (ii) cohabitation or sexual intercourse with the person causing such belief In the present case, we find both the ingredients absent. In order to commit deceitfully causing a false belief in the existence of a lawful marriage we are of the view that some representations by the offender is necessary. Mere omission to mention or even suppression of the fact of talak does not bring one within the mischief of the first ingredient of Section 493 of the Indian Penal Code. That it is so, will be apparent if we refer to Section 415, Indian Penal Code, which defines cheating. Here the word "deception" is also found but and explanation to the section is necessary for the purpose of pointing out that a dishonest concealment of facts is a deception within the meaning of this section. Such an explanation is missing u/s 493 of the Indian Penal Code. In our view, Section 493, Indian Penal Code, contemplates of punishing a man either married or unmarried who induces a woman to become as she thinks his wife but in reality she is concubine. Such an offence may be committed by a person by inducing a woman to believe that she is lawfully married to him although, in fact, there is no legal or valid marriage between them in the eye of law and thereby to cohabit or have sexual intercourse with him. In the present case, Sahida Khatun was legally married to the Appellant. Such lawful marriage came to an end when talak was given to her by the Appellant. It is not the case of the prosecution that even though a valid and effective talak was given to Sahida Khatun, the Appellant caused her to believe that there was no such valid or effective talak and thereby managed to cohabit or have sexual intercourse with her in the belief that she continued to be the legally married wife of the Appellant. Here is a case whether the Appellant is said to have sexual intercourse with Sahida Khatun by not mentioning or suppressing the talak. From such non-mention or suppression of the talak, it cannot be said that the Appellant by deceit caused Sahida Khatun to believe that she was lawfully married to him and to cohabit or have sexual intercourse with him in that belief. It may be that the Appellant suppressed the talaknama to Sahida Khatun, but he is not alleged to have made any misrepresentation to her as to cause her to believe that she continues to be his legally married wife and induced her to cohabit or have sexual intercourse with him in that belief. This being the position we are unable to hold that the Appellant committed an offence u/s 493 of the Indian Penal Code. The wording of Section 493, Indian Penal Code, requires substantial changes before it can be held that the Appellant is guilty under that section. The section as it stands does not bring the Appellant within the mischief of it. Accordingly, we find the Appellant to be not guilty of the offence u/s 493 of the Indian Penal Code.

In the result, the appeal is allowed. The order of conviction and sentence against the Appellant is set aside; fine if paid be refunded to him. He be discharged from his bail bonds.

Borooah, J.

I agree.