JUDGMENT

Agarwal, J - This is an application in revision by two persons, father and son, who have been convicted under Section 498, Penal Code, and each sentenced to six months' rigorous imprisonment and a fine of Rs. 50. They were prosecuted before a Bench of Magistrates under Section 498, Penal Code, on the complaint of one Jaipal Pandey and were convicted as stated above. An appeal preferred by them to the District Magistrate was refused. They then went up to the Sessions Judge in revision and he refused to move this Court. The applicants have applied to this Court in revision. The first point argued by the learned Counsel for the applicant is that the complaint was not made by a proper person. The complaint was made by Jaipal that the wife of his son Harakh Bahadur had been enticed away by the present applicants Ishwardin and Sital Persad. Ishwardin is the father and Sital Persad is his son. Jaipal and Ishwardin are brothers. The prosecution case is that Harakh Bahadur was employed in Sheorampur and his wife had temporarily gone to her father's house in another village and was enticed away by the accused from there. Under Section 199, Criminal P.C., a complaint under Section 498, Penal Code, should be made by the husband of the woman, or, in his absence, made with the leave of the Court, by the person who had care of the woman on his behalf at the time when such offence was committed. It is argued that at the time when the offence was committed, Jaipal did not have the care of the woman on behalf of the husband even if it be considered that the husband was absent. The husband was in Sheorampur for about three months before the complaint and his wife was living with his father till a month and a half before the complaint and she was enticed away when the was at her father's place. The complainant stated that Harakh Bahadur's wife was under his care. He did not expressly state that he had the care of the woman on behalf of her husband, but I think it is implied. He could only have the care of the woman on behalf of the husband. I think Jaipal was the person who had care of the woman on behalf of her husband.

2. It is to be seen whether the husband was absent. The husband was in Sheorampur and so in my opinion he was dearly absent. Reliance is placed on a case, Walia v. Emperor, A.I.R. 1922 Lah. 168. In that case the husband and his father were living in the Montogomery District and the wife had gone to the house of her maternal uncle and was enticed away from that place. The complaint was made by the father of the husband and it was held that it was not clear that the husband was absent but at the same time it was remarked that if he be considered absent, the person who had the care of the woman on his behalf, was the uncle of the woman and not his own father. This case is clearly distinguishable. In this case the husband was living in Sheorampur and he was neither at his father's place nor at the place from where his wife was enticed away. If the husband be not considered to be absent in such a case I cannot understand in what case he will be considered to be absent. I, therefore, hold that the husband was absent and the complaint would be made by the person who had care of his wife on his behalf. The wife had gone temporarily to her father's place and the father of the husband did not thereby cease to be the person having care of her on behalf of her husband. In Walia v. Emperor, A.I.R. 1922 Lah. 168 above referred to, the husband and father were living at the same place and so it was held that the father had no right to make a complaint and that the complaint should be made either by the husband or the person with whom the woman was actually living at the time the offence was committed. Here the husband was not living with the woman when she was taken away by her father. It cannot therefore be said that the woman's father took her from the custody of the husband but took her from the custody of the person who had care of