Alamgir and Another vs The State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 187 of 1956

Decision Date: 14 November, 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar

In the matter titled Alamgir and Another versus the State of Bihar, the judgment was delivered on 14 November 1958 by the Supreme Court of India. The opinion was authored by Justice P. B. Gajendragadkar, who sat with Justices A. K. Sarkar and P. B. Gajendragadkar on the bench. The case is reported in the 1959 volume of the All India Reporter at page 436 and also appears in the 1959 Supplement to the Supreme Court Reports at page 464. The citation also references the 1972 Supreme Court index entry R 1823 (10). The substantive legal issue involved the application of Section 498 of the Indian Penal Code, 1860, together with Section 439 of the Code of Criminal Procedure, 1898, on the question of detaining a married woman with criminal intent, specifically the allegation of possessing a married woman against her will for illicit intercourse. The facts, as recorded, state that a woman identified as R, who was the lawful wife of a man identified as S, disappeared from her husband's residence. She was subsequently located at the dwelling of the appellants, identified as A and his brother B. When S approached A and requested the return of his wife, A asserted that he had married R, while B threatened S and instructed him to withdraw.

The appellants were charged under Section 498 of the Indian Penal Code for detaining R while being aware, or having reason to believe, that she was the wedded wife of S and that they intended to have illicit intercourse with her. The defence asserted that R was not lawfully married to S and that she was not being detained, because she had grown weary of living with S and had voluntarily chosen to stay with the appellants of her own free will. The Magistrate found the appellants guilty, convicted them, and imposed a sentence of simple imprisonment for two months each. On appeal, the Sessions Judge affirmed the conviction but reduced the punishment to a monetary fine of fifty rupees each. The appellants then filed a revision before the High Court, which initially issued a notice of enhancement. After hearing the appellants, the High Court dismissed the revision and increased the punishment to rigorous imprisonment for six months each. The Supreme Court held that the term “detention” in Section 498 denotes the act of keeping a wife away from her husband or any person authorized to care for her on the husband’s behalf. Such retention may be effected by force, but it is not limited to force; it may also arise from persuasion, allurement, or blandishments that either induce the woman’s willingness or encourage an existing inclination to leave her husband. The purpose of the provision is to safeguard the husband’s rights, and it is not a defence for the accused to claim that, although the husband’s rights were infringed, the wife voluntarily consented to that infringement. Accordingly, A was properly convicted because the lower courts found that he had offered to marry R, thereby either persuading or encouraging her to abandon her husband’s household. However, the charge against B was not substantiated, as it was not proven that he had offered any inducement, blandishment, or allurement to R to cause her to leave the protection of her husband and refuse to return to him.

The Court observed that the prosecution had failed to establish any charge against the second accused, B, because it was not proved that B had offered any inducement, blandishment or allurement to the complainant’s wife, R, for leaving the protection of her husband or for refusing to return to him. The Court then listed a series of authorities that were either approved or disapproved, namely Sundara Dass Teva, (1868) IV Mad. H. C. R. 20; Ramaswamy Udayar v. Raju Udayar, A. 1. R. (1953) Mad. 333; Emperor v. Jan Mohomed, (1902) IV Bom. L.R. 435; Broomfield, J., in Emperor v. Mahiji Fula, (1933) I.L.R. 58 Bom. 88; Emperor v. Ram Narayan Baburao Kapur, (1937) 39 Bom. L.R. 61; Mahadeo Rama v. Emperor, A.I.R. (1943) Bom. 179; Prithi Missir v. Harak Nath Singh, I.L.R. (1937) 1 Cal. 166; Bipad Bhanjan Sarkar v. Emperor, I.L.R. (1940) 2 Cal. 93; Banarsi Raut v. Emperor, A.I.R. (1938) Pat. 432; and Bansi Lal v. The Crown, (1913) Punj. L.R. 1066, which were approved. The Court noted that Divatia, J., in Emperor v. Mahiji Fula, (1933) I.L.R. 58 Bom. 88; Mabarak Sheikh v. Ahmed Newaz, (1939) 43 C.W.N. 980; and Harnam Singh v. Emperor, A.I.R. (1939) Lah. 295, were disapproved. Further, the Court held that the High Court was not justified in enhancing the sentence to six months of rigorous imprisonment and that it should have restored the sentence originally imposed by the trial Court. The Court explained that sentencing ordinarily lies within the discretion of the trial Court, and a higher court may increase the sentence only when the lower court’s sentence is unduly lenient or when the trial court has manifestly failed to consider relevant facts. The two‑month simple imprisonment imposed by the trial Court was not so unduly or manifestly lenient as to defeat the ends of justice.

The judgment was rendered in criminal appellate jurisdiction concerning Criminal Appeal No. 187 of 1956, which was filed by special leave from the Patna High Court’s judgment and order dated December 7, 1955, in Criminal Revision No. 875 of 1954, itself arising from the judgment and order dated May 31, 1954, of the Additional Sessions Judge at Arrah in Criminal Appeal No. 293 of 1953. Counsel for the appellants were B. K. Saran and K. L. Mehta, while counsel for the respondent were B. H. Dhebar and T. M. Sen. The judgment was delivered on November 14, 1958, by Justice Gajenderagadkar. The appeal raised a concise question regarding the construction of the word “detains” in section 498 of the Indian Penal Code. The factual backdrop involved the two appellants being charged before the trial magistrate under section 498 that, on or about October 27, 1952, at the village of Mohania, they wrongfully detained Mrs. Rahmatia, the legally married wife of the complainant Saklu Mian, when they knew or had reason to believe that she was the complainant’s wedded wife and was under his protection, with the intent to have illicit intercourse with her. The prosecution alleged that Mrs. Rahmatia had disappeared from her husband’s house on October 21, 1952, and that the complainant had searched for her for several days without success before filing a complaint after being informed by a witness that he had seen the complainant’s wife at the appellants’ house.

In the facts of the case, the complainant searched for his wife for several days after she disappeared from his house on 21 October 1952, but he was unable to discover her whereabouts. He later filed a police complaint after Shakoor Mian, identified as PW 4, told him that he had seen the complainant’s wife at the residence of the two appellants. Acting on this information, the complainant proceeded to the appellants’ house accompanied by Shakoor Mian (PW 4), Musa Mian (PW 2) and Suleman Mian (PW 3). The four persons found the woman inside the appellants’ dwelling. The complainant then addressed appellant No 1, Alamgir, requesting that his wife be released to him. Alamgir responded that he had married the woman, and appellant No 2 warned the complainant to keep away, adding that if the complainant persisted he would be driven out. The testimony of the three companions of the complainant corroborated this version of events.

The appellants denied the charge. They pleaded that the complainant had not lawfully married the woman and that the woman had not been detained by them. According to the appellants, the woman was tired of living with the complainant and had voluntarily, of her own free will, chosen to stay with the appellants. The learned trial magistrate, after evaluating the prosecution evidence, rejected the defence pleas, convicted the appellants of the offence under section 498 of the Indian Penal Code, and sentenced each of them to simple imprisonment for two months.

The appellants appealed this conviction and sentence before the Court of Sessions. The appellate court affirmed the conviction but altered the punishment, reducing the term of simple imprisonment from two months to a fine of Rs 50, or, in default of payment, simple imprisonment for one month for each appellant.

Subsequently, the appellants sought revision before the High Court at Patna. When the revisional application was heard by Judge Choudhary, the judge opined that the appellate court ought not to have lessened the sentence imposed by the trial magistrate. Consequently, Judge Choudhary issued a notice to the appellants, directing them to show cause why their sentence should not be enhanced. This notice, together with the main revisional application, was later considered by Justices Ramaswamy and Imam. Those judges confirmed the conviction and, contrary to the earlier reduction, enhanced the punishment by ordering that each appellant suffer six months’ rigorous imprisonment.

An application made by the appellants to the High Court for a certificate authorising an appeal to this Court was rejected. Nevertheless, the appellants obtained special leave to appeal to the Supreme Court, and the matter thus came before this Court for final disposal. Counsel for the appellants submitted that the evidence established that the woman had left her husband voluntarily and of her own free will, and that she subsequently stayed with the appellants. Accordingly, counsel argued that the appellants could not be said to have detained her within the meaning of section 498, because the term “detains” must imply that the woman was unwilling to remain with the accused and was compelled to stay against her desire.

In its analysis, the Court observed that the word “detains” appearing in section 498 could not be applied where a woman voluntarily chose to stay with the accused. The Court explained that “detains” must convey that the woman is unwilling to remain with the accused and has been forced to stay against her will and desire. It was further noted that it is difficult to conceive a situation in which a woman who freely wishes to stay with a person could be said to be detained; such an interpretation would contradict the ordinary grammatical meaning of the term “detains.” The Court stated that this line of argument required consideration in the present appeal.

The Court then placed section 498 within its proper legislative context, noting that the provision belongs to Chapter XX of the Indian Penal Code, which deals with offences relating to marriage. It observed that the purpose of section 498, like that of section 497, is to safeguard the husband’s rights rather than the wife’s rights. According to the Court, the essence of the offence under section 498 is the deprivation of the husband’s custody and proper control over his wife, coupled with an intention to have illicit intercourse with her. In order to illuminate the meaning of “detains,” the Court compared section 498 with section 366 of the Code, which addresses cases of kidnapping or abduction where the woman is an unwilling party and does not share the criminal intent of the accused. In the context of section 366, the accused seeks to compel the woman to marry someone against her will or to force or seduce her into illicit intercourse, and the provision is intended to protect women from such abduction.

The Court explained that if a woman who is alleged to have been abducted is an adult and gives free consent to the alleged abduction, that consent may constitute a prima facie defence to a charge under section 366. By contrast, the Court emphasized that section 498 is designed to protect the husband’s rights, and consequently the wife’s consent to deprive her husband of control would not be a material defence. The essential ingredients of the offence under section 498, the Court said, are the infringement of the husband’s rights and the intention to commit illicit intercourse.

It was also pointed out that the offence punishable under section 498 is a comparatively minor offence when measured against the offence under section 366. The Court acknowledged that the policy underlying section 498 might appear inconsistent with modern conceptions of women’s status and the mutual rights and obligations of marriage. Counsel for the appellant had vigorously argued that sections 497 and 498 should be deleted from the Penal Code. The Court, however, remarked that such a matter concerns legislative policy rather than judicial adjudication, and therefore it was not within the Court’s purview to entertain that suggestion.

It is indeed correct that, where the language of a criminal provision can be understood in two different ways, the interpretation that favours the accused is ordinarily preferred. However, the Court must also give proper weight to the surrounding context in which the words appear. In the present matter, the Court observes that the context in which the word “detains” is used in section 498 of the Penal Code substantially defeats the meaning advocated by the appellant. Section 498 reads as follows: “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The Court notes that the provision contains three essential ingredients. First, the offender must take, entice away, conceal or detain the wife of another person from that person or from any other individual who looks after her on the husband’s behalf. Second, the offender must know, or must have reason to believe, that the woman is in fact the wife of another man. Third, the act of taking, enticing, concealing or detaining must be performed with the intention that the woman may engage in illicit intercourse with any person. The Court makes clear that, unless the intention to have illicit intercourse is established, the presence of the first two ingredients alone is insufficient to sustain a charge under section 498. Only when the prosecution proves the requisite intention does the Court then examine whether the other two elements are also proved. The provision, the Court observes, contemplates four distinct categories of conduct: a woman may be taken away, enticed away, concealed, or detained. The phrase “any such woman” in the latter part of the section does not refer to any woman who has been taken or enticed, but rather to a woman whom the offender knows or believes to be the wife of another man. The Court further observes that, in the first three categories, the consent of the woman is immaterial if the consent is shown to have been induced or encouraged by the offender through words, acts or any other means. Whether the offender’s influence has operated upon the woman’s mind, or has cooperated with or encouraged her inclinations, is always a question of fact. If, on the basis of the evidence, the Court is satisfied that the woman’s act of leaving her husband was caused by such influence, the matter falls within the ambit of the first three classes of offences described in section 498.

In this case, the Court observed that if a woman's departure was caused by the allure or temptations offered by the accused, such influence could be sufficient to place the accused’s conduct within any of the three categories described in s. 498. Accordingly, when a defence relied upon the woman’s alleged consent or free will, the Court said it was essential to examine whether that consent was in fact produced by the accused’s allure, temptations or encouragement. The Court also noted that it had been argued that the term “detention” in the latter part of the section should, on its face, refer only to confinement against a woman’s will. While it was conceded that the ordinary meaning of “detains” could include restraint contrary to a person’s will, the Court held that in the context of s. 498 that ordinary meaning could not be applied. If the purpose of the provision had been to protect a wife, such an interpretation would have been appropriate; however, the Court emphasized that the provision was intended to safeguard the husband’s rights. Therefore, it was not a valid defence to argue that, although the husband’s rights were infringed, the wife voluntarily harmed those rights and consequently the person who caused her willingness had not detained her. The Court explained that, for the purpose of the statute, “detention” meant keeping a wife away from her husband or from any other person who cared for her on the husband’s behalf, with the necessary intention to do so. Such keeping away could be accomplished by force, but force was not required; it could also result from persuasion, allure or temptations that either created the woman’s willingness or encouraged or assisted her pre‑existing inclination to leave her husband. The Court further concluded that if the wife’s willingness was irrelevant and could not be used as a defence in the first three categories of s. 498, then it could not be treated as a material factor in the fourth category dealing with detention. On that basis, the Court affirmed the High Court’s finding that the charge of detention was proved against appellant No. 1, because the factual findings showed that he had offered to marry Ms. Rahmatia and thereby either persuaded or encouraged her to leave her husband’s house. The Court accepted that, although Ms. Rahmatia might have been dissatisfied with her husband and wished to leave voluntarily, the evidence showed that she had been induced not to return because she expected shelter and protection from appellant No. 1 and looked forward to marrying him. The appellant even claimed to have married her, leading the Court to hold that there was no doubt he intended to have illicit sexual relations with her.

The Court observed that the factual findings recorded concurrently against appellant No 1 were conclusive, and that he could not contest their accuracy or propriety in the present appeal. Section 498 had attracted numerous judicial decisions, and, apart from a few dissenting observations, there existed a substantial consensus favoring the interpretation the Court was prepared to adopt of the word “detains.” Nevertheless, the Court noted that the authorities it would cite displayed a marked divergence in the way facts were approached and evaluated. It appeared that, although the relevant portion of the statute had received the same construction when similar facts were considered, different judges reached opposite conclusions on whether the accused’s conduct satisfied the requirements of section 498. The Court explained that this divergence stemmed from differing methodologies in assessing evidence rather than from any disagreement about the statutory construction itself. Consequently, the Court deemed it futile and improper to re‑evaluate whether the particular factual conclusion drawn in the lower proceedings was correct. What mattered, the Court held, was to ascertain the proper construction of the provision, and in that respect a considerable degree of unanimity existed among the authorities. Accordingly, the Court concluded that the earlier factual findings should remain binding and that the appeal could not succeed on the ground of challenging those findings. The Court further explained that the doctrine of res judicata prevented the appellant from reopening issues that had already been finally decided by the lower courts. Accordingly, the appellate jurisdiction was limited to examining whether any procedural irregularity had occurred, not to reassessing the substantive factual determinations. The Court reiterated that the factual matrix established by the lower tribunals showed that appellant No 1 had offered marriage to the complainant, thereby inducing her to leave her marital home. Such conduct, in the view of the Court, satisfied the element of deprivation of the husband’s control contemplated by the statute.

The Court then examined several earlier judgments to illustrate the prevailing interpretation of the term “detains” under section 498. In the 1868 Madras High Court decision of Sundara Dass Tevan, the court held that depriving a husband of his lawful control over his wife for the purpose of illicit intercourse constituted the core of the offence, comparable to the offence of taking away a wife. The same judgment explained that a detention leading to such deprivation could be effected merely through allurement or blandishment, without the necessity of physical force. Applying that principle to the facts of the Sundara Dass case, the Madras court found no evidence that the accused had offered any allurement or blandishment, and consequently set aside the conviction. The Court noted that this construction of section 498 has been widely accepted, citing the later Madras decision in Ramaswamy Udayar v. Raju Udayar as confirmation of its authority. The Bombay High Court, in Emperor v. Jan Mahomed, adopted an identical view, holding that the offence was complete when the accused removed the woman in a manner that deprived her husband of control, irrespective of the woman’s voluntary accompaniment. Nevertheless, the Bombay judgment also observed that no direct or indirect evidence of the accused’s intention, allurement, or blandishment was found, leading the court to set aside the conviction. The Court also referenced the decision in Emperor v. Mahiji Fula, where Justice Broomfield described “detains” as a form of deprivation that may arise from persuasion as well as physical restraint. In that case, the trial court concluded that the accused’s conduct did not fall within the mischief of section 498, and accordingly the conviction was set aside. The Court further observed that the principle articulated in these precedents required a clear demonstration of the accused’s intentional act to restrain or induce the woman, rather than mere knowledge of her separation. In the present matter, the evidence established that appellant No 1 had indeed induced the woman, and therefore the statutory element of detention was deemed satisfied.

The conviction order against the accused was set aside, and the same issue resurfaced before the High Court in Emperor v. Mahiji Fula (3). Justice Broomfield, who delivered the principal judgment, explained that the term “detains” signifies deprivation and, in ordinary language, means “keeps back.” He observed that there are several modes of keeping back a person; it need not involve physical force. Detention may be effected by persuasion or, as noted by the Madras High Court in Sundara Dass Thevan (4), by allurement or blandishment. Nevertheless, the trial court found that, based on the facts, the accused’s conduct did not fall within the mischief of section 498. The complainant’s wife had been taken away by her brother and subsequently entered into a natra marriage with the accused. Upon learning of this, the complainant approached the accused and requested that his wife be allowed to return to him. When the complainant and his friends arrived, the accused emerged brandishing a dharia and threatened them, causing the group to retreat to their village. The trial court held that the accused’s reaction to the complainant’s approach did not necessarily demonstrate that he had detained the woman. Accordingly, the trial court acquitted the accused, and the High Court, on appeal, found no reason to disturb that acquittal and affirmed the order. Justice Divatia, delivering a concurring opinion, appeared to diverge from Justice Broomfield on the interpretation of “detains.” He agreed that the scheme of section 498 indicates that the offence of taking or enticing away is complete once a woman is taken or enticed away, irrespective of her willingness. However, he contended that the latter part of the section, which refers to concealing or detaining the woman, would require that the woman be prevented from going wherever she wishes. In our view, that construction is unsound. Concealing a woman does not necessarily implicate considerations of her consent, and Justice Divatia himself stated that the woman's consent is irrelevant in cases of taking or enticing her away. If consent is irrelevant for taking or enticing, it becomes difficult to render consent decisive in detention cases. Unfortunately, the learned judge did not appear to have appreciated the fact that the primary and the

In this case, the Court observed that the sole purpose of section 498 was to protect the rights of the husband rather than to safeguard the rights of the wife. Consequently, if it is shown that the woman’s desire to stay away from her husband was either prompted or encouraged by the accused, the woman may be considered detained or kept away from her husband within the meaning of the provision even though, at the time of the alleged detention, she might be willing to remain with the accused. This principle was earlier articulated by Broomfield and Sen, JJ., in Emperor v. Ram Narayan Baburao Kapur (1) and by Beaumont C.J., and Sen, J., in Mahadeo Rama v. Emperor (2), where the courts held that the woman had been detained. The Calcutta High Court adopted a similar construction of the word “detention.” In Prithi Missir v. Harak Nath Singh (3) the High Court held that the term “detention” is ejusdem generis with “enticement” and “concealment.” The Court clarified that the term does not require that the woman be kept against her will; however, there must be evidence that the accused performed an act which effectively prevented the woman from returning to her husband. On the merits, the Court found that the trial magistrate had failed to arrive at a definite factual finding. In fact, there was no indication that the accused was maintaining the complainant’s wife as his mistress, and the Court was not satisfied that the accused was responsible for the complainant’s wife leaving her husband’s house; consequently, detention was not proved against the accused. In Mabarak Sheikh v. Ahmed Newaz (4) the same High Court held that there can be no detention within the meaning of the second part of section 498 where the woman is an absolutely free agent capable of leaving the accused at any time she wishes. The learned judges seemed inclined to adopt this view, relying on earlier decisions already considered by this Court. With respect, the Court noted that the effect of those earlier decisions had not been properly taken into account and that the factual findings in those cases were assumed to color and modify the construction of the section. Moreover, the relevant observations were obiter because, on the facts of the present case, the woman was not a free agent; therefore, the charge against the accused under section 498 was held to be established. In Bipad Bhanjan Sarkar v. Emperor (1), Henderson and Khundkar, JJ., also examined the term “detains” in a comparable manner, reinforcing the principle that without proof of an act that effectively restrains the woman, the provision does not apply.

tags. All citations need be kept: (2), (3), (4), (1) I.L.R. [1940] 2 Cal 93, (3) (1913) XLV Punjab L.R. 1066, (2) A.I.R. (1938) Pat. 432, (4) A.I.R. (1939) Lah. 295. We need to keep internal spacing correct. Let's craft.

In the instant matter, the court examined the term “detains” in the same way it had previously done, and it found that there was absolutely no evidence showing that the accused performed any act that would bring his conduct within the mischief contemplated by section 498.

The Patna High Court, in Banarsi Raut v. Emperor (2), held that providing shelter to a married woman constitutes an inducement that amounts to detention within the meaning of section 498. That decision illustrates that when a married woman was discovered living in the accused’s house for a period of time and sexual intercourse between them was established, the court was prepared to infer that persuasion or inducement of the woman fell within the definition of “detention.” In that case the inference was drawn against the accused, placing it on the opposite side of the line from the present facts.

Similarly, the Lahore High Court expressed a comparable view as early as 1913 in Bansi Lal v. The Crown (3). The court in that case held that where the accused provided a house for a woman who stayed there after deserting her husband, doing so under the protection of the accused as his mistress, such conduct represented active behaviour by the accused that was sufficient to bring him within the ambit of section 498.

Contrastingly, in 1939 a Division Bench of the Lahore High Court adopted an opposite stance in Harnam Singh v. Emperor (4). In that matter the revisional application filed by Harnam Singh against his conviction under section 498 was initially argued before Justice Din Muhammad, who referred the case to a Division Bench because he considered the legal question raised to be of importance. In his referring judgment, the learned judge cited several relevant decisions—namely (1) I.L.R. [1940] 2 Cal 93, (2) A.I.R. (1938) Pat. 432, (3) (1913) XLV Punjab L.R. 1066, and (4) A.I.R. (1939) Lah. 295—and expressed his view that the word “detains” naturally implies some overt act by the person who detains in relation to the person detained. He indicated that mere blandishments would not constitute a relevant factor in establishing detention.

The matter then proceeded before a Division Bench consisting of Chief Justice Young and Justice Blacker. Although the judgment of that bench did not elaborate on the construction of section 498, it recorded a concise conclusion: “In our opinion, the word ‘detains’ clearly implies some act on the part of the accused by which the woman’s movements are restrained and this again implies unwillingness on her part. Detention cannot include persuasion by means of blandishments or similar inducements which would leave the woman free to go if she wished.” The learned judges also noted that the term “detains” could not be reasonably construed as referring to the husband.

The Court added that it was of the view that the term “detains” could not be reasonably interpreted as referring to the husband. In its assessment, those observations did not correctly reflect the true purpose and effect of the provisions of section 498. Consequently, based on the findings of fact recorded by the lower courts against appellant No. 1, the Court held that the conviction of appellant No. 1 under section 498 was proper. The discussion then turned to the sentence that had been imposed on him by the High Court in its revisional jurisdiction. The Court was satisfied that the High Court was not justified in ordering appellant No. 1 to undergo rigorous imprisonment for six months as an enhancement of the original sentence. It is important to note that sentencing ordinarily lies within the discretion of the trial judge, who must consider all relevant circumstances and decide what punishment will serve the ends of justice in the particular case. While the High Court unquestionably possesses jurisdiction to increase a sentence under section 439 of the Code of Criminal Procedure, that power may be exercised only when the High Court is convinced that the trial‑court sentence is unduly lenient or that the trial judge manifestly failed to take into account material facts. It is possible that the High Court believed the appellate order issued by the Sessions Judge, which altered the original sentence, was erroneous; in that respect, issuing a notice under section 439 to appellant No. 1 to show cause why his sentence should not be enhanced might have been warranted. However, if the High Court chose to enhance the sentence, the Court thought it should have restored the sentence originally imposed by the trial judge. In the course of enhancing the punishment, the High Court observed that “women in this country, whether chaste or unchaste, must be protected and that it is the duty of the court to see that they are given sufficient protection.” The Court considered that this observation was of limited assistance and not decisive, because, as previously noted, section 498 is intended not to safeguard women’s rights but to protect the rights of husbands. Moreover, the facts of the present case showed that Mst. Rahmatia, described as a woman of loose moral character, was dissatisfied with her second husband, the complainant, and was prepared to marry appellant No. 1. Although appellant No. 1 was guilty under section 498, the Court found it difficult to accept the High Court’s view that the two‑month simple imprisonment imposed by the trial court was so unduly or manifestly lenient that it failed to meet the ends of justice. Accordingly, the Court concluded that it would not be appropriate for the appellate court to intervene merely on the basis that it might have imposed a slightly higher sentence had it tried the case itself.

In this case, the Court held that it was not appropriate for the appellate court to disturb the sentence imposed by the trial court merely because, had the appellate court itself tried the case, it might have imposed a somewhat harsher or heavier term of imprisonment. Accordingly, the Court modified the sentence that had been awarded to appellant No 1, reducing it to a term of simple imprisonment of two months. The matter of appellant No 2 was considered to be distinct from that of appellant No 1. The factual findings recorded by the lower courts did not show that appellant No 2 had engaged in any persuasion, nor had he offered any blandishments or inducements to Mst Rahmatia. The sole piece of evidence against appellant No 2 was that, when the complainant attempted to retrieve his wife, appellant No 2 threatened the complainant. The record also shows that appellant No 2 is the brother of appellant No 1; even assuming that he was aware that Rahmatia had married his brother and that he told the complainant to leave, such conduct does not legally permit an inference that he offered any inducement, blandishment or allurement to Rahmatia to abandon the protection of her husband and refuse to return to him. Moreover, the lower courts had not examined the case of this appellant separately on its own merits. In the Court’s view, the conviction of appellant No 2 was unsupported by any evidence in the record. Consequently, the appeal filed by appellant No 2 was allowed, the conviction and sentence against him were set aside, and he was ordered to be acquitted and discharged. The appeal of appellant No 1 was dismissed, while the appeal of appellant No 2 was granted.