ORDER

1. 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.

Markandey Katju, J.

2. Heard learned Counsel for the parties.

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

4. 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 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."

5. Often 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.

6. This appeal has been filed against the impugned 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.

7. Section 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 to fine.

8. The 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.

9. 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.

10. 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 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.

11. 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 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 fire), the marriage becomes complete and binding when the seventh step is taken.

12. Thus 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 re