This article on the landmark case Alamgir vs. State of Bihar (1958) and Section 498 of the Indian Penal Code was written by Thejalakshmi Anil. This article provides an in-depth analysis of the Alamgir case, which dealt with the interpretation and application of Section 498 of the IPC. It breaks down the facts, legal issues, arguments, and judgement of this significant Supreme Court case. The article goes beyond just summarising the case to offer a critical examination of Section 498 and the adjacent Section 497 (adultery law).
Table of Contents
Introduction
The Indian Penal Code has come under heavy criticism in recent years, considering its retention of many colonial and anachronistic provisions. The formulation of the Bharatiya Nyaya Sanhita Bill was done in order to overhaul some of these often criticised provisions. This was hailed as a major revamp of a code that has not undergone major amendments over the course of the hundred and fifty years in which it has been in place. However, we see that even under the new penal codes, many draconian provisions have been retained. This article deals with one such section, which is Section 498 of the Indian Penal Code (1860) and its application in this case, Alamgir vs. State of Bihar (1958) .
The Indian Penal Code was drafted at a time when the British perceived women to be merely properties of their husbands. They were seen as mere passive agents who had to bear children and manage their households without any agency. She was subordinate to her husband and was under his protection. This case is particularly relevant to understanding the mindset that prevailed. While the respondent in this case tried to offer a narrow interpretation of the phrasing of the statute, this was ultimately denied by the Court, which followed a conservative approach. In this article, we will be discussing the facts of the case along with the interpretation of the section.
Details of the case
Name of the case
Alamgir & Another vs. The State Of Bihar
Equivalent citations
1959 AIR 436, 1959 SCR SUPL. (1) 464, ILR 38 PAT 334, AIR 1959 SUPREME COURT 436, 1959 ALL. L. J. 417, 1959 BLJR 514, 1959 SCJ 457, 1959 MADLJ (CRI) 293
Type of the case
Criminal Appeal
Parties to the case
Appellant
Alamgir & Another
Respondent
The State of Bihar
Court
The Supreme Court of India
Bench
Justice P.B Gajendragadkar and Justice A.K. Sarkar.
Date of the judgement
14 November 1958.
Laws involved
Section 498 of the Indian Penal Code
Facts of the case
This case concerned the alleged detainment of Rahmatia, who was the legally wedded wife of the complainant, Saklu Mian. Rahmatia disappeared from her marital home on October 21, 1952. After several days of searching, the complainant was able to trace her location to the house of the two accused in this case. The accused persons refused to let Rahmatia go with the complainant. The first appellant, Alamgir, informed the complainant that he had married Rahmatia and the second appellant threatened the complainant that if he did not leave, he would be driven away. This version of events was confirmed by the three witnesses, Shakoor Mian, Musa Mian and Suleman Mian who accompanied the complainant to the house of the accused persons. The accused were subsequently charged with illegally detaining the wife of the complainant.
The Magistrate found them guilty and sentenced them to simple imprisonment for two months. The accused then appealed to the Sessions Judge, who confirmed the conviction but reduced the sentence both accused to pay a fine of Rs 50/-. The appellants filed a revision petition before the Patna High Court. However, the High Court dismissed the revision petition and enhanced the punishment of the accused to a sentence of rigorous imprisonment of six months for both accused.
Law discussed
Section 498 of the Indian Penal Code
Section 498 effectively punishes a man who takes, entices away, conceals or detains a woman whom he knows or has reason to believe is the wife of another man with the intention of having illicit intercourse with that woman. This provision is clearly meant for the protection of the interests of the husband. Only the husband is eligible to institute prosecutions under this offence, which effectively empowers him to control the sexual agency and autonomy of his wife. Her will and consent are absolutely immaterial to determining the guilt of the accused, who is seen to be dispossessing the husband of his chattel.
Ingredients of the Section
This Section lays down four different scenarios where the provision would be operationalised. A wife may be:
- Taken away – This refers to assisting or facilitating a woman’s departure from her husband’s home.
- Enticed away – This involves coaxing or luring a woman away from her husband through persuasion or allurement. The focus is on the act of enticement itself, not necessarily the woman’s consent. However, if the husband has already forced the wife out, subsequent enticement may not be considered criminal.
- Concealed – While not explicitly defined in the given text, concealing generally refers to hiding or keeping the woman secret from her husband or those who might return her to him.
- Detained – This means keeping the woman from returning to her husband. It doesn’t require physical force or holding her against her will. Rather, it involves any action by the accused that prevents or discourages the woman from going back to her husband. This could be through persuasion, control, or other means of influence.
In all four instances, the consent of the wife is immaterial if the prosecution can prove that this consent is premised on the words or actions of the accused. The determination of whether the woman actually acted upon or was influenced by the actions of the accused is a factual determination based on a case to case basis. In such cases, the consent of the woman can only be used as a defence if it is proved with evidence that the woman was not acting under the influence of the allurement or encouragement of the accused. If this is proved, then this would bring the case within the three classes mentioned under Section 498.
In the case of Jnanendra Nath Dey vs. Kshitish Chandra Dey (1935), the court ruled that ‘taking’ does not include taking by force or mean something that is different from enticing. Assisting the woman to get away from her husband would be sufficient to encompass some taking. In Chhotey [1955] ALJ 894, it was held that arranging transportation for a woman so that she could leave her marital home would amount to taking her away from the house of the husband. Therefore, taking involves some act or assistance.
Enticement refers to any kind of coaxing employed by the accused to lure her away from her husband. However, if the husband had already expelled his wife out of the house before the alleged enticement took place, then no criminality would apply. Therefore, it is the enticement or taking from the husband that is important, not the enticement of the woman. In Queen vs. Pochun Chung [1865] 2WR (Cr) 35, where the wife was deserted and went of her own free will to live with another man, the conviction was set aside since there was no enticement to take away.
Detains, in its ordinary meaning, refers to ‘keeping back.’ This need not be with persuasion but can also be with any kind of enticement, control or persuasion. Proof of persuasion is necessary to constitute detention. This does not mean evidence should be adduced that the woman is being kept against her will but rather that there must be evidence that the accused did something that prevented the woman from returning to her husband. Therefore, detention could be with or without physical force.
In the case of Adikanda Samal vs. Madhabananda Nayak (1979), the accused was the first cousin of the wife, who left the house on account of the unfriendly attitude shown by her father in law. The court refused to convict the accused on the ground that there was no evidence that the accused prevented or obstructed the woman from returning to her husband and rather, it was the wife who refused. Therefore, he was acquitted under this section.
Reason to believe that the woman is the wife of another person
In such cases, the prosecution should prove that the woman in question must actually be the wife of another man and that it was known to the accused or that he had reason to believe that she was the wife of the complainant.
This section will not apply if the marriage is voidable. In the case of Emperor vs. Madan Gopal (1912), the accused enticed a woman who was the illegitimate daughter of a Brahmin father and a Bania mother and had married a Bania. The accused was held to be guilty since this marriage would be considered valid under Hindu law.
However, in another case, Isa vs. Ranam (1911) 31 PLR 258, the case concerned the subsequent remarriage of a woman who had married a man during the ‘iddah’ period. Such marriages during Iddah are considered null and void. Therefore, there was no criminality in the second marriage. Moreover, the mere sighting of a woman outside the house of the complainant is not sufficient evidence that the accused had ‘reason to believe.’
Intent to have illicit intercourse
Even if the first two ingredients are present without the intention of having illicit intercourse, a charge under Section 498 would not be sustained. In Naurang vs. Emperor (1915), a person enticed a married woman to marry her off to someone else. However, it was held that he committed an offence under this Section since this would constitute illicit intercourse if she were to have sexual intercourse with the person to whom she had been given in marriage. In Srimotee Paddae [1864], when the accused induced a married woman to leave her husband and become a prostitute, it was held that he was guilty since the wife would not have had the opportunity to leave her husband without the presence of the accused.
Section 439 of CrPC
Section 439 of the Code of Criminal Procedure vests the power with the High Court to enhance the sentence given by the trial court. This jurisdiction is to be exercised only if the court is satisfied that the lower court, in passing the sentence, was unduly lenient or failed to consider certain facts that may be relevant.
Constitutionality of Section 497
This section effectively criminalised adultery; it has been struck down in Joseph Shine vs. Union of India (2018). While the first draft of BNS made references to this provision, it has been struck down in the second. While this section is not immediately relevant in the present case at hand, it will facilitate a more comprehensive analysis of Section 498.
Section 498 made adultery an offence that could be penalised with imprisonment extended up to a period of 5 years. It is important to note that women were excluded from culpability under this offence and could not be prosecuted even as abettors to the crime. It is also pertinent to note that married men who engaged in sexual intercourse would not be penalised under this offence.
Three judgements before the Supreme Court had upheld the constitutional validity of Section 498 before it was struck down in the Joseph Shine judgement. The first judgement upholding its validity was Yusuf Abdul Aziz vs. State of Bombay (1954). This was based on an erroneous interpretation of Article 15(3), wherein it held that non penalisation of women for the commission of the offence of adultery is on account of the ‘special provision’ under the article. In Sowmithri Vishnu vs. Union of India (1985), the other discriminatory element, which is a married woman not being able to prosecute her husband for adultery under this section, was raised. However, this too was unsuccessful. In V. Revathi vs. Union of India (1988), a challenge against adultery was made on the basis of Section 198 of the CrPC.
In the Joseph Shine case, a five judge constitution bench unanimously struck down Section 497 of the IPC. The bench unanimously held it to be discriminatory against women and violative of their fundamental rights under Articles 14, 15 and 21 of the Constitution. The offence under Section 497 was held to be an excessive penal provision that needed to be decriminalised. Further, the bench overruled its judgements in Sowmithri Vishnu, Vishnu Revathi, and Y Abdul Aziz, which held the same to be constitutionally valid.
This was held to be a paternalistic and archaic law that violated the dignity and autonomy of women. This exceedingly progressive judgement recognised that women could not be considered the property of men, as implied by this provision and placed reliance on the string of progressive jurisprudence evolved by the courts.
With respect to Article 14, CJI Mishra held that the provision is manifestly arbitrary and creates distinctions that are based on gender stereotypes and hence is excessive and disproportionate. Moreover, the Court also held that Article 15(3) would not protect Section 497.
The Court also held Section 497 to be violative of Article 21 since the effect of Section 497 effectively infringes on the dignity of women and affects their personal autonomy. Additionally, CJI Mishra also held that criminalising adultery would be an unwarranted state intrusion into the privacy of an individual since the state cannot criminalise actions that occur within the private realm of marriage. Hence, while adultery can be a civil wrong, it cannot be a criminal one.
The case was filed by Joseph Shine, who filed a public interest lawsuit that challenged the constitutionality of this offence under Section 198(2) of the Code of Criminal Procedure, 1973.This case was taken up by a three judge bench headed by CJI Dipak Mishra. This was subsequently referred to a five judge bench, which struck down this law. The Court noted that while the act of adultery is committed by both parties, only one is being penalised under this provision while the other is absolved. Additionally, in this provision, the concept of gender neutrality is absent.
Judgement of the Patna High Court
Appeal to Supreme Court
Issues raised before Supreme Court
- Whether the word ‘detain’ in Section 498 of the IPC includes situations where the married woman is willingly staying with the accused?
- Whether the High Court is justified in enhancing the punishment of the accused persons?
- Whether there was sufficient evidence against Appellant No. 2 to sustain his conviction under Section 498 of the IPC?
Arguments of the parties
Appellants
The appellants in this case argued that Rahmatia was not validly married to the complainant. She had grown tired of living with the complainant and had left the house out of her own free will and came to stay with them.
According to the appellants, if Rahmatia had voluntarily left the house, then this case would not fall under the ambit of Section 498 since this would only cover those cases where the woman who is being detained is being compelled or forced to stay with the accused. It was contended that the word ‘detain’ necessarily implies that the woman is unwilling and does not desire to stay with the detainee. Therefore, if Rahmatia, out of her own volition, decided to stay with the accused persons in this case, it cannot be said to be detention.
The appellant also argued that sections 497 and 498 should be scrapped from the Indian Penal Code (1860), considering the discriminatory phrasing and sexist notions underlying the policy of the legislation.
Respondent
The prosecution in this case contended that the two appellants had wrongfully detained the complainant’s wife with the intent to have illicit intercourse with her, thereby depriving the husband of his control over his wife. The prosecution argued that the conduct of the appellants in this case amounted to “detaining” the wife under Section 498 of the Indian Penal Code, even if the wife was initially willing, as the appellants had induced or encouraged her to leave her husband’s protection.
Judgement in Alamgir & Another vs. State of Bihar (1958)
The court held that the first appellant was rightly convicted under Section 498 since his actions constituted detention. The Court based its decision on the finding that he had encouraged the wife to leave the house of the complainant on the inducement of marriage.
On the second issue pertaining to the question of sentence imposed on account of the revisional jurisdiction of the High Court, the Supreme Court held that the enhancement of the sentence to six months was not justified. With respect to the conviction of the second appellant, the court held that the charge under Section 498 was not made out since no evidence was adduced to show that he had offered some kind of encouragement to the wife to leave the protection of her husband or to refuse to return to him. Therefore, the order of conviction and sentence passed against him were set aside and he was acquitted.
Rationale behind this judgement
Whether the word ‘detain’ in Section 498 of the IPC includes situations where the married woman is willingly staying with the accused
The primary rationale offered by the court for upholding the conviction of the first appellant was that, considering the text of the IPC along with its occurrence in Chapter XX, it shows that provisions such as Section 498 and 497 were intended to protect the rights of the husband. Chapter XX deals with those offences that pertain to marriage. Under Section 498, the consent of the wife to deprive her husband of his proper control over her was therefore held to be immaterial.
The court held that the conviction under Section 498 would include those instances where the wife is being kept from her husband or any other person who is taking care of her on behalf of her husband. This might be using force but can also include instances where the woman has voluntarily left with the other person due to persuasion or allurement, which may have either induced the woman or encouraged the initial inclination to leave her husband. The court reasoned that if ‘consent’ cannot be a defence in the first three instances mentioned in the statute, which are ‘taken away, entice or concealed’ then it cannot act as a material factor in the last category of cases.
With reference to the questions of fact, it was proved that Rahmatia left her marital home on the promise of the accused that he would marry her. It was this inducement that also persuaded her to stay with the accused and not return to her marital home. It is also evidence that he knew that she was married. Additionally, the claims of marriage made by the first appellant also show his intent to have illicit sexual intercourse. Considering that all three elements were fulfilled, the court held the accused guilty under Section 498.
Whether the High Court is justified in enhancing the punishment of the accused persons
The Court held that the High Court was unjustified in enhancing the punishment. It was noted that the High Court might have been of the belief that the Sessions Court was unduly lenient and the show cause notice to that effect might have been justified. However, the Court held that while enhancing the sentence, it should have simply restored the sentence that was passed by the trial judge.
Additionally, the Court held that considering the fact that Rahmatia was a woman of ‘loose moral character’ who had voluntarily left her marital home to marry the accused, a two month imprisonment as initially imposed by the trial court could not be considered unduly lenient.
Whether there was sufficient evidence against Appellant No. 2 to sustain his conviction under Section 498 of the IPC
The court held that the case of the second appellant can be clearly distinguished from the first. Rahmatia acted upon the persuasion and blandishment proffered by the first appellant and not the second. The only evidence adduced against the second appellant is that he threatened the compliant. Therefore, this would not attract the penalty under Section 498.
Precedents relied on
In the case of In Re Sundara Das Tevan (1868), 4 M.H.C.R. 20, the Madras High Court held that detention would constitute depriving the husband of proper control of his wife for the purpose of illicit sexual intercourse by offering certain allurement or other kinds of persuasion. On the question of whether ‘detention’ would require force, the High Court held that the deprivation forseen in the judgement need not only be effectuated by physical force but can also happen through allurement or blandishment. On the facts of this case, however, the Court was not satisfied that the accused offered any such kinds of influencing. Therefore, the conviction was set aside.
This application of the section was likewise followed by the Bombay High Court in Emperor vs. Mahomed Dawood (1946), where it was held that even if the woman accompanied the accused out of her own will, this will not be a defence if evidence of allurement or blandishment can be concretely found. Similar to the Madras High Court case, such evidence was not found here.
This question was again taken up by the Bombay High Court in Emperor vs. Mahiji Fula (1933), in which the wife was taken away by her brother, who subsequently got her married to the accused. When the husband asked the accused to allow his wife to go back with him, the accused threatened the complainant to return to their village. The Court held that the conduct of the accused would not fall under the category of detainment.
In a Calcutta High Court judgement in Prithi Missir vs. Harak Nath Singh (1936), a similar interpretation for ‘detention’ was upheld, wherein it was interpreted that this word is ejusdem generis with enticement and concealment. Further, the Court held that for an action to fall into this category, while lack of consent is not necessary, there must exist evidence that the accused’s actions precluded the woman from returning to her husband.
In Banarsi Das vs. Emperor (1930), the Patna High Court held that providing shelter to a married woman would constitute an inducement and amount to detention under Section 498. Therefore, the facts of this case led to an inference against the accused. This view was supported by the decision of the Lahore High Court in Bansi Lal vs. Crown, 319 Pun LR 1913, where the court held that providing a house for the woman to stay after deserting her husband was an act of active conduct sufficient to bring it within the ambit of Section 498.
However, there are also judgements cited in this case where the courts have deferred the construction of the word detention. In Harnam Singh vs. Emperor (1918), the Lahore High Court held that detainment would imply unwillingness on the part of the woman.
Analysis of Alamgir & Another vs. State of Bihar (1958)
This case, while recognising the anachronistic basis of the law, refused to strike it down, citing policy reasons. This kind of judicial evasion is similar to the court’s reasoning in refusing to strike down marital rape, saying that it constitutes a judicial encroachment into law making sphere and that it is protecting the privacy and sanctity of marriage.
In examining the legal status of adultery, it becomes evident that Section 498’s indirect enforcement of adultery laws through references to illicit intercourse lacks a robust rationale in modern jurisprudence. Principles of criminal liability emphasise the need for sound reasoning behind criminal statutes. Section 497, which criminalises adultery, fails to meet these standards and instead perpetuates outdated notions of marital subordination.
The existing legal framework, particularly Sections 359 to 369, adequately addresses issues of kidnapping and abduction regardless of age, gender, or marital status. This renders the specific criminalization of adultery redundant and raises questions about its necessity. Furthermore, the criminalization of a married woman’s exercise of free will in matters of personal relationships does not demonstrably impact society to an extent warranting criminal sanctions.
Consequently, the continued criminalization of adultery represents an unjustified intrusion of the State into the private sphere of individuals. This stance not only conflicts with evolving societal norms but also challenges fundamental principles of personal autonomy and privacy. In light of these considerations, there is a compelling argument for the reevaluation and potential decriminalisation of adultery, aligning legal standards with contemporary understandings of individual rights and social dynamics.
Additionally, as described above, such provisions violate Articles 14, 15 and 21 of the individuals and is based on consideration of ‘woman as chattel.’ Considering that such provisions demean and degrade the status of women, they violate modern constitutional values. This provision targets women alone, restricts her free will and is therefore violative of Articles 14 and 15(1) of the Constitution. It considers women as the subject of her husband and seems to consider that her sexual autonomy and dignity are traded away upon marriage. Additionally, in the case of Navtej Singh Johar vs. Union of India (2018), sexual privacy was held to be a natural right that is fundamental to the dignity and liberty of an individual. Section 498 is clearly at odds with these values. This is also violative of the right to move freely throughout India as under Article 19(1)(d) and the right to reside and settle in any part of India as under Article 19(1)(e).
As mentioned by the facts, Rahmatia was someone who, out of her own will, left her marital home to stay with someone of her choosing. However, in this whole trial, she becomes invisibilized, with her wishes and desires being sidelined. Indeed, the judgement reads like a property dispute between the husband and the accused, with Rahmatiah being reduced to the chattel of her husband. Indeed, the judgement explicitly acknowledges that Section 498 gives precedence for the rights of the husband over the wife, thereby violating the substantive equality of the wife and denying them equal protection.
Additionally, while redacting the enhanced sentence which was passed by the High Court, the Supreme Court made certain assertions about the morality of Rahmatia, describing her as having ‘loose moral character.’ Therefore, non legal misogynistic considerations about the character of the woman influenced the decision of a purely legal matter concerning the validity of the enhancement of punishment. Hence, this judgement is clearly regressive, paternalistic, discriminatory and based on harmful gender stereotypes and prejudices about marital relations.
Conclusion
This case brings to light the deeply problematic and outdated nature of Section 498 of the Indian Penal Code. The Supreme Court’s decision to uphold the conviction under this archaic provision exposes the law’s paternalistic and discriminatory foundations. By prioritising the husband’s “rights” over the wife’s autonomy and consent, Section 498 essentially reduces married women to the status of their husbands’ property.
The court’s rationale is steeped in outdated concepts of female subjugation and marital hierarchy, which are incompatible with the principles of a modern, constitutional democracy. By criminalising a married woman’s exercise of free will, Section 498 infringes upon fundamental rights to privacy, dignity, equality, and freedom of movement as guaranteed by Articles 14, 15, 19, and 21 of the Constitution.
Furthermore, the court’s disparaging comments regarding the complainant’s “loose moral character” highlight how such laws perpetuate and legitimise regressive societal attitudes that undermine women’s sexual autonomy. This case ultimately emphasises the urgent need for a comprehensive reform of the Indian Penal Code to eliminate outdated, discriminatory provisions like Section 498 that conflict with constitutional values of equality, dignity, and personal liberty. Legal reforms are crucial to eradicating the law’s ingrained biases against women.
Frequently Asked Questions (FAQs)
How is Section 498 different from kidnapping?
The offence of kidnapping under Section 366 is distinct from the offence under Section 498 and is considered relatively minor. While the court acknowledged that the offence under Section 498 is inconsistent with modern notions of marriage and the status of women,. However, the courts refused to consider this point further, saying that this was a question for the parliament, which the courts are not concerned with.
What is Section 198(2) of CrPC?
According to Section 198(2), only the husband or any person with whom the husband entrusted his wife can raise a complaint against a third party under Sections 497 and 498. This was rendered unconstitutional by the Joseph Shine case. Therefore, there exists a legal vacuum with respect to who can file a complaint and against whom under Section 498.
What is the implication of the Joseph Shine judgement on members of the Armed Forces?
Section 69 of the Army Act, 1950, punishes members of the armed forces for committing civil offences. In 2020, the Centre filed an application before the Supreme Court asking for clarification with respect to the Joseph Shine judgement and whether it would be applicable to members of the Armed Forces or not. Subsequently, a 5 Judge Constitutional Bench was set up to look into the same, led by Justice KM Joseph, who passed the final order on the matter in 2023. The Court held that while decriminalising adultery, they were not concerned with the laws of the armed forces and that consequently, this would not impact them.
Has adultery been made an offence under the Bharatiya Nyaya Sanhita?
While the first draft of the BNS constituted a provision under clause 84 that was very similar to Section 498, this was later omitted. The Parliamentary Standing Committee had suggested that the BNS be amended to make adultery a gender neutral offence. This was proposed to be done in order to preserve the sanctity of marriage.
References
- https://www.scobserver.in/cases/joseph-shine-v-union-of-india-decriminalisation-of-adultery-background/
- https://www.epw.in/journal/2023/47/law-and-society/folly-re-criminalising-adultery.html
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