The central legal point established in the judgment is that the prosecution must prove the accused's influence, encouragement, or inducement in depriving the husband of proper control over his wife to establish guilt under Section 498 of the IPC.

JUDGMENT

Sandeep K. Shinde, J. - The question that arises for my consideration is, whether the evidence of Victim-Rekha Anant Patil (P.W.9) and of her, husband Anant Patil (P.W.1), has established beyond a reasonable doubt, that the appellant was guilty of taking away or enticing victim, (a married woman) from the care of her husband with intent that she may have illicit intercourse with him.

2. Appellant has been convicted for the offence punishable under Section 498 of the Indian Penal Code, 1860 ('IPC' for short) and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- with default stipulation vide judgment dated 15th May, 1998 in Sessions Case No.44 of 1996 passed by the learned 2nd Additional Sessions Judge, Raigad at Alibag.

3. Prosecution case in brief is, that the complainant married, Rekha in May, 1995. Rekha's matrimonial house was at Nerul; whereas her parental house was at Vahal. Complainant said, on 31st October, 1995 at around 8.30 a.m., appellant informed him on telephone that he had abducted his (complainant) wife. Soon thereafter, husband enquired with in-laws. Whereupon, he was told by mother-in-law that, Rekha, had left for Nerul (matrimonial house) on the earlier day (30th October, 1995) at 3.30 p.m. Thereafter, husband lodged the complaint whereupon the offence under Section 366 of the IPC was registered.

4. That after fling final report, charge was framed under Sections 366, 376, 497 and 498 of the IPC. Upon appreciating evidence, accused was acquitted of the offences punishable under Sections 366, 376, 497 of the IPC, but convicted under Section 498 of the IPC. It is against the conviction and sentence, this appeal is preferred.

5. Section 498 of the IPC reads as under:

"498. Enticing or taking away or detaining with criminal intent a married woman. Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

The gist of the offence under this Section consists in the deprivation of the husband of his custody and his proper control over his wife. Therefore, the consent of the wife to deprive her husband of his proper control over her is not material. This section applies to cases where the object of 'taking' or 'enticing' is, that the woman may have illicit intercourse with some other person. One of the elements of the offence under Section 498 of the IPC is taking or enticing away the wife of another. In the case of Mahadeo Rama v. Emperor,1943 AIRBombay 179, it was held that to bring Section 498 into operation, there must be some influence operating on the woman, or co-operating with her inclination at the time the final step is taken, which causes a severance of the woman from her husband. Therefore, unless there is some influence physical or moral by the accused upon the wife of another, there cannot be any "taking". In so far as the word "detain", i.e., keeping back, need not necessarily be by physical force. It may be by persuasion. In the case of Alamgir and another v. State of Bihar, (1959) AIR SC 436 it is held 'keeping back may be by force; but it need not be by force. It can be the result of persuasion, allurement or blandishments which may either have caused the willingness of the woman, or may have encouraged, or cooperated with, her initial inclination, to leave her husband.

. However, in Chaman Lal Monga v. Haji Sabir Ali, (1973) CriLJ 1249 the complainant's wife left her husband's place and live with the accused. There was no proof to show that the woman was being detained by the accused as a result of allurements or she was being encouraged or induced not to go back to her hu