In cases of adultery and enticing of married women, strict proof of marriage is required, including the factum, legality, and validity of the marriage.

Bhattacharjee. J. :- Having heard Mr. N.B. Kharga, learned Advocate for the accused-appellant, and the learned Advocate-General appearing for the State, both of whom have taken us through the entire record, we have no manner of doubt that the appeal must be allowed and the judgment and order under appeal must be set aside.

2. The accused-appellant has been convicted under Section 497, Indian Penal Code, for allegedly committing adultery with the woman said to be married to the complainant, and also under Sec. 498, Indian Penal Code, for allegedly detaining the said woman with intent to have illicit intercourse with her.

3. Both the Sections 497 and 498 form part of Chapter XX of the Indian Penal Code, which is headed as "Of Offences relating to Marriage" and the question of marriage, its factum and legality, are of utmost importance in all cases under these Sections. The law on the point appears to be well-settled for about last hundred years since the decision of the Full Bench of the Calcutta High Court in Empress v. Pitambur Singh decided in ((1879) ILR 5 Cal 566) where Garth, C. J., delivering the judgment of the Full Bench, observed that "the marriage of the woman is essential element of the crime charged as the fact of illicit intercourse and the provisions of the Evidence Act (Section 50) seem to, point out very plainly that where the marriage is an ingredient in the offence, as in bigamy, adultery and the enticing of married women, the fact of the marriage must be strictly proved in the regular way." The observations in this case apply equally to a case of adultery under Section 497, Indian Penal Code, as well as to enticing of married woman under Section 498, both of which require the same strict proof of marriage.

4. It is unfortunate that in this case the learned Sessions Judge has not properly dealt with this aspect. In our opinion, in cases of this kind, it is necessary for the complainant or some other person on his behalf to give strict proof of marriage in order to enable the Court to determine the question whether the marriage in fact did and in law could take place and whether the relationship of husband and wife did exist in fact and could exist in law at the relevant time.

5. The aforesaid Full Bench decision of the Calcutta High Court in Empress v. Pitambur Singh, (1879) (ILR 5 Cal 566), has been referred to, and relied on by the Supreme Court in Kanwal Ram v. The Himachal Pradesh Administration (AIR 1966 SC 614): (1966 Cri LJ 472) and that goes to show that the law on the point is what was laid down in that century-old case.

6. In Bhaurao Shankar Lokhande v. State of Maharashtra (AIR 1965 SC 1564) : (1965-2 Cri LJ 544) the Supreme Court, in construing the expression "whoever ......... marries" under Section 494, Indian Penal Code, has observed that "prima facie the expression 'whoever.......... marries' must mean 'whoever......... marries validly' or 'whoever......... marries and whose marriage is valid one'." If the expression "marries" under Section 494 Indian Penal Code should mean marrying legally and validly, the expression "wife" under Section 497 and Section 498, Indian Penal Code, should also mean legally and validly married wife and, therefore, in a prosecution under these Sections the factum as well as the legality and the validity of the marriage must be strictly proved beyond any reasonable doubt.

7. In the case at hand, the complainant is a Hindu belonging to, the Bengali community and the alleged wife belongs to the Bhutia community and is a Roman Catholic Christian by faith. The alleged wife, figuring as the sole defence witness, has categorically asserted that she was not legally married to the complainant. The witnesses for the prosecution, including the complainant, have, however, stated that the complainant and the said woman were married according to Nepali custom and rites by applying some mixture of curd and rice on the foreheads of both. We have failed to understand how a Bengali