The main legal point established is the presumption of adultery based on cohabitation and the requirement to prove the marriage for the offence under S.497 of the I.P.C.

1. Complainant in C. C. 335 of 1985 of the Judicial Magistrate of the First Glass, Vaikom is the appellant. He filed complaint against the accused under S.497 and 498 of the I. P. C. The learned Magistrate held that the complainant has not established his case against the accused under both the sections and acquitted the accused.

2. It is the case of the appellant that he had married P. W. 7 Thressia according to religious ceremonies at the Vaikom Nadel Little Flower Church, that they were residing as husband and wife and that the accused, a neighbour who had full knowledge about the appellant's marriage with P.W. 7 committed adultery with P.W. 7. On 14th September 1985 Thressia went to her house and did not return to the appellant's house. The appellant made enquiries in her house and realised that she left her house in the previous day. Appellant became suspicious and he filed a petition before Vaikom Police. On further enquiry appellant came to know that the accused and Thressia were residing together and that they had executed an agreement on 13th May 1985 to live together as husband and wife. It is also the case of the appellant that the accused and P. W. 7 told the Sub Inspector about their determination to live together and that appellant was forced to give Rs. 1,000 and a gold chain weighing 1 1/2 sovereigns to P. W. 7. Appellant has also a case that the accused had enticed P. W. 7 without his knowledge and consent and that he is having illicit sexual relationship with her.

3. P. W. 1, the complainant appellant stated that on 7th February 1982 he married P. W. 7 according to religious ceremonies in the Church at Nadel, that the accused who is residing at a distance of 50 feet from his house full well knew of the marriage and that accused and his family members had participated in the marriage. P.W.1. asserted that P.W. 7 is residing with the accused. P.W. 2 who actively participated in the marriage feast stated that the accused too participated. It is also stated by him that the accused and P.W. 7 are residing together. P.W. 3 who is the brother of P.W. 1 stated that the accused had participated in the marriage of P. Ws. 1 and 7. P. W. 7 has admitted her marriage with P. W. 1.

4. Thus, there is ample evidence of the marriage between PWs 1 and 7. As the evidence of P.W. 2, an independent witness shows unequivocally that the accused had participated in the marriage of PWs 1 and 7, defence contention that accused was not aware of the marriage is not tenable.

5. To constitute offence under S.497 the following ingredients of S.497 will have to be established:

(1) That the accused had sexual intercourse with a woman,

(2) that such woman was married,

(3) that the accused knew or had reason to believe it,

(4) that the connection was held without the consent or connivance of the husband and

(5) that the sexual connection so held does not amount to rape.

Prosecution has to satisfy the Court that there was no connivance for the adultery. In the case in hand accused has no such case. To prove sexual intercourse direct evidence is seldom available. Defence counsel contended that there is no evidence of sexual relationship between accused and P.W. 7 and so there cannot be any adultery. It is scarcely, possible to have direct evidence of sexual intercourse. Though direct evidence for sexual intercourse is seldom available, the Court cannot accept mere gossip or rumour or hearsay evidence as proof of it. If there is evidence of the accused having opportunity of access with the wife of another and if the evidence and circumstances indicate access between them, the Court can very well accept it as evidence of adultery.

6. We have to consider whether evidence in the case is sufficient to prove the allegation of adultery. Appellant has relied on Ext. P-1 agreement to show that the accused and P.W. 7 had entered into a contract in the Sub Registry Office to live together as husband and wife. In Ext. P-1 the name of the woman is shown as Acham