A husband forcibly taking his wife to live with him does not commit an offence under Section 366, IPC, for abduction, as the intent required for abduction is absent in such cases.

( 1 ) THE appellant Pirmohammad was tried by the third additional Sessions Judge of Indore on charges under Ss. 366 and 452, I. P. C. At the end of the trial, 'the learned additional Sessions Judge found the appellant guilty of both the offences and sentenced him to one and half years' rigorous imprisonment under Section 366, I. P. C. , and to one year's rigorous imprisonment under Section 452, I P. C. The sentences are to run concurrently. The accused has now preferred this appeal against the convictions and sentences.

( 2 ) THE case for the prosecution was that Mst. Fatama was married to the appellant some ten years back when she was a minor. After the marriage, the accused did not keep her with him. Mst. Fatma, therefore, continued to live with her parents Kasam and Mst. Suraj. Two years after the marriage the parents of Mst. Fatma entreated the accused to keep Mst. Fatma with him and even sent messengers to him to persuade him to do so. But the appellant paid no heed to these entreaties. The parents then gave away Mst. Fatma in Natra to one Taju. Mst. Fatma got a child from Taju. Sometime before 17th February 1957, Mst. Fatma came to her parents' house to help her mother who was then expecting a baby. It was alleged by the prosecution that on 17th February 1957 at about noon the accused accompanied by seven or eight persons, all armed came to the house of Kasam during his absence, forced open the door of the house and after entering the house forcibly took away Mst. Fatma. The accused and his companions took Mst. Fatma in a cart to the village of the accused. The child which Mst. Fatma had begotten from Taju was left in the house. According to the prosecution when Mst. Suraj went to the rescue of her daughter, the appellant and his companions gave her a push and she fell; down. Mst. Suraj then called Narayan and sent him to inform her husband and to call him to the house. Kasam returned home and after getting the details of the incident from his wife lodged a first information report on 17-2-1957 at about 9-30 p. m. in Palasia Police Station, Indore. The police then took up investigation and arrested the accused.

( 3 ) THE plea of the appellant was that Mst. , Fatma went with him of her own accord. He denied having gone to the house of Kasam. He did not deny the fact that on the material date he was in village Naita Mundla where Kasam resided.

( 4 ) THE conviction of the appellant is based mainly on the evidence of Mst. Suraj who deposed: to the marriage of Mst. Fatma with the accused, his refusal to keep her with him, the subsequent Natra with Taju and to the fact of the appellant visiting her house with two or four companions all armed with farsa and swords and forcibly taking away Mst. Fatma with them. As Mst. Fatma died before the trial of the accused her evidence was not available. The learned Additional Sessions Judge accepted the evidence of Mst. Suraj whom he found to be "a very unsophisticated woman". He found her evidence corroborated by the statement of Narayan who was called by Mst. Suraj immediately after the incident and sent to her husband for informing him of the incident and of the witnesses who had seen the appellant and his companions driving away in a cart with Mst. Fatma. The learned trial Judge came to the conclusion that by going armed to the house of Fatma for causing hurt to Mst. Fatma and' for forcibly taking her away the appellant committed an offence under Section 452, I. P. C. and that he also committed an offence under Section 366, I. P. C. , when he forcibly took away Mst. Fatma. During the trial the accused contended that as. Mst. Fatma was his wife there could be no offence of abduction when he took her with him, even if against her will. The learned trial Judge rejected" this plea observing that according to the evidence of Abbas, the village Patel, for the validity of a Natra marriage it was not necessary that there should have been a formal divorce earlier between Mst. Fa