The offence under Section 493, Indian Penal Code, requires the practice of deception by a man on a woman, leading her to believe that she is lawfully married to him, in order to have sexual intercourse with her.

NARASIMHAM, C. J.

( 1 ) THIS is a petition under Section 215 of the Criminal Procedure Code for quashing the commitment of the petitioner for an offence under Section 493 of the Indian penal Code.

( 2 ) THE facts found by the committing Magistrate are as follows. The petitioner is a brahmin boy aged 22 years with his wife living. He was residing in Parlakhimedi town, close to the house of a Brahmin widow named Radbarani Dei. The two used to meet frequently and the petitioner persuaded her to marry him. The woman was somewhat reluctant chiefly because he had a wife living and insisted that the marriage should be registered. Some letters passed between the two and in one of them (Ext. 1) the petitioner told Radharani Dei that he had no objection to get the marriage registered as desired by her. He also handed over to her a bond (Ext 2)dated the 29-9-1951. in which he clearly admitted that he was going to marry her and further specified certain terms regarding their conjugal life. He also assured the woman that the bond would be registered in due course. Accepting his assurance, the unfortunate woman left her parents' house and accompanied him to Berhampur where on 24-10-1951, in a room in a choultry some sort of a marriage ceremony took place between the two, in the presence of two friends of the petitioner, namely Kailash Misra and Kamana Padhy. The woman was made to wear new clothes and put on new bangles and also vermillion mark on her forehead. There was also an exchange of garlands between the two. The petitioner assured the woman that these ceremonies were sufficient to complete the marriage. Then the two lived as husband and wife for sometime at Jagdalpore where the petitioner had secured a job. After some months she became pregnant by him but he got tried of her, deserted her. and went away to his first wife. The woman gave birth to a child which died later on. It is stated that she has filed a civil suit against the petitioner claiming maintenance and damages which is still pending.

( 3 ) THE main question for consideration is whether, on the aforesaid findings of fact, the charge under Section 493, Indian Penal Code can be said to have been made out. That Section is as follows :

"493. Every man who, by deceipt 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".

( 4 ) IT will be noticed that the essence of the 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 even though, in fact, they are not lawfully married. The crucial question for consideration is whether on the findings of the Magistrate it may be reasonably held that the petitioner practised such deception on Radharani. To prove deception it must be conclusively established that the petitioner either dishonestly or fraudulently concealed certain facts, or made a false statement knowing it to be false. If for instance it could be held that he knew that the ceremonies which the two underwent at Berhampur on 24-101951, did not constitute a valid marriage between a Brahmin male and a Brahmin widow, the necessary guiltv intention may be inferred. But such an inference does not follow from the proved facts of the case. The petitioner is a youth of about 22 years. If he was going to marry a virgin of his caste it may be reasonably inferred that he must have known that Homa and Saptapadi are essential requisites for such a marriage. But he was marrying only a widow and, as pointed out in Mulla's hindu Law (Eleventh Edition) at page 548 (Section 437 (2 ). no religious cermonies are necessary for the marriage of widows. Doubtless some sort of ceremony must be undergone to distinguish a valid marriage from mere