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2007 Supreme(Gau) 224
IN THE HIGH COURT OF GAUHATI
P.G. Agarwal, J.
Rajesh Paul Choudhury
Vs.
State of Assam
Decided On: 19.03.2007
The principle of 'volenti non fit injuria' and the relevance of the husband's conduct as evidence under Section 50 of the Evidence Act were central to the court's decision.
Headnote:
Adultery - Criminal Law - Section 497, IPC - [Section 497, IPC] - The court discussed the essential ingredients of Section 497, IPC and the requirement to establish lack of consent or connivance by the husband. It highlighted the definition of connivance and its relevance in determining the offense of adultery. The court emphasized the principle of 'volenti non fit injuria' and the conduct of the husband as relevant evidence under Section 50 of the Evidence Act.
Fact of the Case:
The accused appellant was convicted under Section 497, IPC for having an illicit relationship with the deceased, who was married to the informant. The husband had deserted the wife, and the court found that his conduct constituted consent/connivance, leading to the acquittal of the accused.
Finding of the Court:
The court found that the conduct of the informant/husband, in deserting his wife and allowing her to live with the accused, constituted consent/connivance, leading to the acquittal of the accused.
Issues: The key issue was whether the accused was guilty of the offense under Section 497, IPC considering the lack of consent or connivance by the husband.
Ratio Decidendi: The court held that the conduct of the husband, in deserting his wife and allowing her to live with the accused, constituted consent/connivance, leading to the acquittal of the accused.
Final Decision: The appeal was allowed, the impugned order of conviction and sentence was set aside, and the accused appellant was acquitted.
P.G. Agarwal, J.
1. Heard Mr. J.M. Choudhury, learned Senior Counsel appearing on behalf of the accused appellant and Mr. P.C. Gayan, learned P.P.
This appeal is directed against the judgment and order dated 20.6.2001 passed by the Sessions Judge, Cachar, Silchar in Sessions Case No. 66/98 (GR Case No. 1730/95) whereby the accused appellant was convicted under Section 497, IPC and sentenced to imprisonment for three years.
2. In Sessions Case No. 66/98, the accused appellant Sri Rajesh Paul Choudhury was tried for commission of offence under Sections 306/497, IPC. During trial, the prosecution examined as many as 8 witnesses and on conclusion, the learned Trial Court acquitted the accused appellant from the charge under Section 306, IPC; but convicted him for the offence under Section 497, IPC and sentenced to imprisonment for three years and hence, the present appeal.
3. Smt. Reba Biswas (since deceased) was married to Dwiptendu Biswas, the informant, in the year 1985 and out of the said wedlock, a daughter was born to the couple in the year 1989. The couple used to reside in the first floor of the two storeyed building at Janiganj, Silchar and the ground floor was rented out to the accused appellant to run his printing press and a part of the first floor was also given on rent to the accused for residential purpose.
4. The case of the prosecution is that the accused appellant had developed some intimacy with Reba Biswas and illicit relationship grew between them and as a result, the wife started showing apathy to her husband. The husband left the place and started residing elsewhere. On the date of occurrence, the informant's wife was found hanging in the room whereupon information was lodged to police.
5. In this case, the fact that the accused had some relationship with the deceased Reba Biswas is not disputed or challenged by the appellant before us in view of the tell-tale evidence available on record about the fact that the husband used to reside somewhere else from the side of the maid servant who was working in the said house.
6. Learned Counsel for the appellant has submitted that the fact that Reba Biswas was married to the informant Dwiptendu Biswas was also known to the accused appellant; but for that no offence under Section 497, IPC has been made out.
7. Section 497, IPC reads as follows:
497. Adultery--Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
8. We, thus, find that the essential ingredients of Section 497, IPC as regards a man having sexual intercourse with a woman, who is the wife of another man and the fact that the man knows the woman, to be the wife of another man, have been established in this case from the evidence led by the prosecution. However, in order to constitute an offence under Section 497, IPC, the prosecution is also required to establish that the husband has not consented or connived. The Dictionary meaning of the word 'Connivance' as per Black's Law Dictionary is quoted below-
Connivance--The secret or indirect consent or permission of one person to the commission of an unlawful or criminal act by another. A winking at; voluntary blindness; an intentional failure to discover or prevent the wrong; forbearance or passive consent. Pierce v. Crisp 260 Ky. 519 : 86 S.W. 2d 293, 296.
As constituting defence in divorce action, is plaintiff's corrupt consent, express or implied, to offence charged against defendant. Munir v. Munir Del. Super 7 Terry 578 86 A. 2nd 857, 858. This defense has been abolished by many States with the enactment of no-fault divorce laws.
9. Connivance is based o
