Ram Chandra Bhagat Vs
State of Jharkhand
Since there is a
difference of opinion, let the papers of this case be placed before Hon'ble the
Chief Justice of India for sending the matter before another Bench.
[GYAN SUDHA MISRA]
Ram Chandra Bhagat Vs
State of Jharkhand
O R D E R
Per Hon'ble Mr.
Justice Markandey Katju
learned counsel for the parties.
separation of law from morality by the British positivist jurists Bentham and
Austin was a great advance in legal history.
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 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." Sir
Thomas then asked "But which law has he broken?" 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."
an act may be regarded as immoral by society, 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.
appeal has been filed against the impugned judgment and order of the High Court
of Jharkhand dated8.9.2005. By the impugned judgment the appellant's conviction
under Section 493 IPC by the trial Court has beenupheld.
493 of the Indian Penal Code states as under :- "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, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
facts of the present case are that the complainant 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 that the appellant turned the lady out of his house.
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.
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 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.
7 of the Hindu Marriage Act, 1955 reads asunder :-"Section 7. Ceremonies
for a Hindu Marriage -
1. A Hindu marriage may be
solemnized in accordance with the customary rites and ceremonies of either
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 fire), the marriage becomes complete
and binding when the seventh step is taken."
a Hindu marriage can be solemnized in accordance with the customary rites and
ceremonies of either 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 allegation that 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 purported civil marriage not
in accordance with the Special Marriage Act. Hence, in my opinion, the
ingredients of Section 493 IPC are not satisfied.
is true that the appellant has not behaved like 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 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.
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 and
reproved Hand : "That is not my job. It is my job to apply the law." (see
`The Tempting of America', by Robert Bork).
the present case it can be said that the appellant has not behaved like a decent
man but, in my opinion, Section 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
criminal statute has to be construed strictly. Unless all its ingredients are
satisfied the person cannot be punished, otherwise there will be violation of
Articles20(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.
since my learned sister Hon'ble Mrs. Justice 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.
Ram Chandra Bhagat Vs
State of Jharkhand
GYAN SUDHA MISRA, J.
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 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 be based purely on morality. However, the specific issue with which we
are confronted with in this appeal 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 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 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."
perusal of the aforesaid Section, clearly indicates that 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 opinion, the offence under Section 493 IPC can be clearly held
to have been made out against the accused.
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 has been admitted by the appellant and
out of their relationship, they also had two children. It could be further noticed
that the 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 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, which document has been marked
asEx.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 voterlist of the same village Betha that for the year 1988 markedEx.6/1
and still further voter list of the year 1993 of the same Village Betha that 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 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 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 along with the friends.
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 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 had deceit fully induced the complainant
Sunita Kumari to believe that she was lawfully married to him as he 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 District
of Lohardaga among the members of the Or an 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 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 over whelming material-documentary evidence as well as customary
practice to induce 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 beenborn.
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; 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.
my humble opinion, the aforesaid three ingredients for the offence under
Section 493 IPC in the light of the evidence recorded hereinbefore, are clearly
fulfilled in the present case.
is no doubt true that the essence of an offence under 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 and then make the woman co habit
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 Section 493 of the IPC.
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 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 Section493 IPC can be held to have
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 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 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.
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 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 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 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 in corporate in the Indian 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
I have not been able to persuade myself to 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.
(Gyan Sudha Misra)