JUDGMENT

Simpson, A J C - This is a reference by the Sessions Judge of Sitapur. The case was one under Section 498, Indian Penal Code. There were originally three accused, but one of the three was acquitted by the Court of trial and another by the appellate Court. So I am only concerned with the third accused, whose appeal was dismissed. He is under sentence of three months' rigorous imprisonment. The learned Sessions Judge has referred the case on the ground that there is not sufficient proof of the marriage. The learned District Magistrate noted that there was no evidence of the marriage. He stated:

It is not enough to take this for granted. It is a matter which requires formal proof. I have taken additional evidence on this point, the statement of the woman. Ordinarily, this would not be enough; but as the principal accused also states that the woman is the lawful wife of the complainant, and as he is in the best position to know this, being her sister's husband and next-door neighbour, I take it as proved.

2. In the case of Empress v. Pitambar Singh (1878) 5 Cal 566, which was a decision of a Full Bench, it was unanimously held by five Judges that the evidence of the prosecutor: "She is my wife by marriage," and the statement of the woman: "I am married to the prosecutor," was not sufficient to support a conviction for adultery under Section 497. It was held that the marriage ought to be proved like any other essential fact in the case, by direct evidence of witnesses speaking to the facts said to constitute a marriage, so that the Court may determine whether what they state to have taken place did take place in fact, and if so whether it constitutes a marriage in point of law. The Court adverted to the terms of Section 50 of the Indian Evidence Act, which runs as follows:

When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person, who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code.

3. This decision has never been dissented from, and there are similar decisions of other High Courts. There is also a decision of this Court-Queen-Empress v. Pirthi (1900) 3 O.C. 342. As regards the admission of the prisoner, it is true that under Section 58 of the Indian Evidence Act, no fact need be proved which the parties agree to admit, but there is a proviso to this section; that the Court may in its discretion require the facts admitted to be proved, and it is the undoubted practice of the Courts to require strict proof of all the facts essential to a conviction. It was said in Kallu's case (1883) 5 All. 233 that "the admission of the appellant in no way strengthens the position." This being the state of the law the conviction cannot stand. I accept the reference, and set aside the conviction of Phikku and acquit him. He need not surrender to his bail.