Section 120A

This article is written by Samiksha Madan, a student of Symbiosis Law School, Hyderabad. This article analyzes the provision of criminal elopement entailed under Section 498 of the Indian Penal Code, 1860.

This article has been published by Sneha Mahawar.

Introduction 

Marriage has been a fundamental institution of social life since the Vedic era, but it appears as though its exploitation has now surpassed conjugal love. A number of significant reasons, including the advancement of technology, the rise of materialism, and legal initiatives, have contributed to changes in the institution of marriage. The entire Indian Penal Code, 1860 (IPC) deals with criminal offenses, their justifications, and their associated penalties. Induced adultery of a married woman by another man is addressed in Section 498 of the IPC. Among the many types of offenses against women, offenses against marriages include, among others, fraudulent marriages (S.493 & 496), bigamy (S.494 & 495), adultery (S.497), and criminal elopement (S.498) under Chapter XX of the Indian Penal Code, 1860. Courts have widened the scope of such offences over time to encompass a variety of contemporary situations. Article 51A(e) of the Indian Constitution requires all citizens to abstain from practices that are derogatory to the dignity of women. Additionally, there is a need for broad legal reforms to safeguard a married woman’s physical and emotional integrity from her husband’s violent behaviour. The article entails the concept of criminal elopement and various important decisions pronounced with respect to Section 498 of the Indian Penal Code.

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Criminal elopement under Section 498 IPC

(a)  Meaning 

Enticing or taking away or detaining with criminal intent a married woman. 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 the 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.”

Section 498 punishes a person who takes or entices a married woman from her husband with the intent that she may have illicit intercourse with any person.

Illustration – R and S are married. D, a man entices and lures away S, the wife of R to have illicit intercourse with him. Here, R has a right to protection provided under Section 498 IPC and D would be liable under this provision.

(b) Object

The purpose of Section 498 and Section 497 of the Indian Penal Code is to shield the husband against unlawful intrusion into his marital life. Additionally, it is done to uphold and defend the husband’s rights against such an unlawful incursion and punish any person who is accused of it. The primary offence entails depriving the husband of custody and authority over his wife in order to have an intimate relationship with her. In Alamgir v. State of Bihar (1958), the Supreme Court noted that the policy underlying the provision of Section 498 of the Indian Penal Code may appear to be at variance with contemporary ideas about the status of women and the reciprocal rights and obligations of marriage. However, that is a policy issue with which the courts are unconcerned.

(c) Ingredients

1. The woman must be the wife of another person

An essential ingredient for holding a person liable under Section 498 of the Indian Penal Code is that the woman so enticed or taken away must be the wife of another person. For instance, if A is a woman, and F is a man who entices A to have illicit intercourse with him, F would be held liable under this section only if A is married to a man. Provided that the marriage is not voidable, any person who has enticed or taken away such a woman shall be held liable. Therefore, the necessity for there to be proof of marriage was stated in the case of Emperor v. Nazir Khan (1913).

2. The accused must be aware that she is the wife of another person;

It was stated in the case of Emperor vs. Jagannath Gir and Ors. (1937) that the expression “such women” stated in Section 498 of the IPC, 1860 refers to women whom the accused knows to be the wife of another or has a reason to believe the same, rather than merely a woman who has been enticed or taken away by the accused person. Another requirement for punishing an accused for an offence under this Section is knowledge or a reason for the accused to believe that the woman is the wife of another. For instance, if A, a woman, is married to B, and G, another man, knowingly and deliberately entices and takes away A from her husband’s control in order to have illicit intercourse with her. Here, G would be held liable for the offence under this section. 

3. The accused must have enticed or taken away the woman from her husband;

Taking away implies that there must have been some sort of influence on the woman, or some act or assistance that worked in conjunction with her predisposition at the time the final step was taken, resulting in the severance of the woman from her husband accompanied by an intention. It does not necessarily imply a violent takeover. It must, however, be done for the purpose outlined in the Section. Furthermore, ‘taking away’ is distinct from ‘enticing’. When the accused takes the wife of another away with him, the act of taking is complete, whether she was willing or not. The word ‘entice’ involves an idea of inducement in the other through exciting hopes or desires. The offence under Section 498 IPC was not made out when the woman declined to go with her husband and it could not be proven that the enticement was intended to engage in illegal intercourse. A woman must be enticed in a way that she is separated from the husband’s control. For instance, where A and B are married, B, the wife of A, has to be enticed, such that she is taken away from A’s control, which would amount to criminal elopement under this provision. 

The Bombay High Court observed in Emperor vs Ramnarayan Baburao Kapor (1936), case that where the brother of a married woman who had eloped with the accused lodged a complaint against the accused for an offence under this section, no action was taken by the Court because it was not demonstrated that he had the husband’s authority to care for her. As a result, taking or enticing must come from the lawful authority of the husband or any individual having care of her.

4. Such taking or enticing must be with the intent that she may have illicit intercourse with any person.

To uphold a conviction under Section 498, it must be proven that the woman was enticed or brought away from her husband’s home and detained for the purpose of unlawful intercourse, as held in the case of Prem Nath Laroiya vs. The State (1972). The fact that she was just observed outside the accused’s residence is insufficient. The intention of the accused plays an important role under the provision. Illegal intercourse is any sexual activity with a person she has not been given in marriage throughout the lifespan of her husband. A woman cannot be penalised as an abettor in this offence, as is defined by Section 497.

Who can file a complaint for an offence under Section 498 IPC

A complaint for an offence under Section 498 of the Indian Penal Code can be filed by the husband or, in his absence, by any other person who is in the care of such a woman. Section 198(2) of the Criminal Procedure Code, 1973, specifies that for the purposes of Section 198(1), no person other than the husband of the woman will be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the Indian Penal Code: Provided, however, that in the absence of the husband, any person who looked after the woman on his behalf at a time when the offence was committed may, with the court’s permission, submit a complaint on his behalf. The above-mentioned observation was laid down in the case of BS Puttaswamy Sannaiah v MS Shamla Kumari Puttaswamy (2007).

Both men and women are capable of committing an offence under Section 498. Undoubtedly, the fact that such a woman could engage in criminal sexual activity with any man is a key component of the crime. However, a woman is equally capable of enticing or taking away. Such a woman may then be penalised in accordance with this provision. The wife’s consent is not relevant and cannot be used as a defence against a charge under this clause. A wife cannot be punished as an abettor.

Nature of Section 498 IPC

The nature of Section 498 is as follows:

  1. Bailable or Non-Bailable – A bailable offence is one in which the accused is granted bail as a matter of right, whereas a non-bailable offence is one in which bail is not granted, subject to the court’s discretion. Section 498 is a bailable offence, whereas Section 498A is a non-bailable offence.
  2. Cognizable or Non-Cognizable – Cognizable offences are those in which the police can make an arrest without the court’s permission and can act on their own initiative. These crimes are heinous in nature, including rape, murder, forgery, etc. Non-cognizable offences, on the other hand, are those in which the police have no authority to arrest a person without the approval of the court. These are not as serious as cognizable offences and include offences such as theft. Section 498 is non-cognizable and Section 498A, on the other hand, is cognizable because causing physical or mental harm to a wife is a serious offence. 
  3. It should be highlighted that an offence committed under Section 498 can be tried by any magistrate, in contrast to the other marriage-related offences, which are triable by the Magistrate of the First Class.

Meaning of the word ‘enticement’ in Section 498 IPC

The act of enticing, alluring, or tempting is referred to as enticement. To entice is to wrongfully solicit, allure, attract, coax,  persuade, seduce someone, or to lure, induce, attempt, instigate, or persuade someone to do anything. [United States v. Joseph (2008)]. Although the word ‘enticement’ is not defined in the Code, it is understood to mean to take something away by inciting lust or desire or any such persuasion. In order to prove the guilt of the accused under the terms of the Section, there must be tangible evidence (Norman O’Conner v. Emperor, 1935). Where P, the head of XYZ Co., by promising promotion to S, a married woman, entices and takes her away for the purpose of having illicit intercourse with her, would be held liable for an offence under this section.

The essence of the word ‘detain’

Although the word ‘detains’ may refer to holding someone against their will, this interpretation is implausible given the context of the Section. If the purpose of the Section were to protect the wife, such a construction would have been obvious. However, because the purpose of the Section is to protect the rights of the husband, it cannot be used as a defence against the charge to claim that while the husband has been deprived of his rights, the wife is willing to injure those rights and thus the person responsible for her willingness has not detained her. Detention in this context must mean withholding a wife from her husband or any other person caring for her on behalf of her husband with the requisite intent of illicit intercourse. Such restraining may be done with force, but there is no obligation to do the same as such. It can be the result of persuasion, allurement, or blandishments that either caused the woman’s willingness to leave her husband or encouraged or co-operated with her initial tendency to leave her husband. If the wife’s willingness is immaterial and cannot be used as a defence in the first three categories listed in Section 498, it cannot be used as an underlying condition in dealing with the final category of detention listed in the statutory provision.

Role of consent under Section 498 IPC

In this Section, the phrase ‘enticement’ refers to some form of persuasion. In order to ascertain a person’s guilt under this provision,  it must be proven that the enticing of another’s wife was to take her away from the control of her husband. As a result, although there is an aspect of consent, that consent is influenced. This part requires four conceptions. It states that a lady can be taken away, enticed away, concealed, or detained. In the first three class of cases that is – Taken away, enticed away, concealed; the consent of the woman is irrelevant. For that, one has to prove that the said consent was induced or encouraged by the accused by words or by committing any other act, by the pretence of marrying her.

How is Section 498 IPC different from Section 366 IPC 

When read broadly, Sections 366 and 498 refer to offences such as kidnapping, abduction, enticing, or taking away women, all of which are punishable under the Code. They can, however, be distinguished in the following ways.

Sr.no.Section 366 IPCSection 498 IPC
1.This Section applies to those cases wherein the woman is kidnapped or abducted, such that they are unresponsive to the criminal intent of the accused and are an unwilling party.This Section applies to cases where the husband is deprived of custody and authority over his wife.
2.The aim is to protect the woman who is sought to be kidnapped/abducted by another.The aim is to protect the rights of the husband over his wife.
3.It is a non-bailable offence.It is a bailable offence.
4.Amounts to imprisonment of up to 10 years and a fine.Amounts to imprisonment of up to 2 years, or fine, or both.
5.An offence under this Section is a major offence.An offence under this Section is comparatively, a minor offence.
6.It is a cognizable offence.It is a non-cognizable offence.

Important case laws 

Alamgir v. State of Bihar (1958)

In Alamgir & another v. State of Bihar [1956], the wife vanished from her husband’s home. She was found with the appellant’s brother in his home. When the husband approached the appellant and requested that his wife be returned, the appellant informed him that he had married her wife, and the appellant’s brother intimidated the husband and ordered him to leave. The appellants were found guilty in the trial court and sentenced to two months in simple jail. The Session Court upheld the judgement and lowered the sentence to a fine of Rs.50 each. On subsequent appeal, the High Court sentenced the appellants to six months of severe imprisonment under Section 498 of the Indian Penal Code, 1860. It was determined that if a man willfully goes away with another man’s wife in such a way as to deprive the husband of his control over her, with the intent to have illicit intercourse, he would commit an offence under the Section.

Singana Naga Nooka Chakrarao v. State of U.P., (2007)

The petitioner-accused was tried for offences under sections 497 IPC (adultery) and 498 IPC in the present matter (criminal elopement). The Trial Court convicted him under both the offences and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 500/- and to suffer simple imprisonment for one month for the offence under Section 497 of the IPC and simple imprisonment for three months and to pay a fine of Rs. 300/- to suffer simple imprisonment for one month for the offence under Section 498 of the IPC. The Appellate Court upheld the judgement and punishment under Section 498 of the IPC while acquitting him of the offence under Section 497 of the IPC. 

This case establishes that the foremost point to prove in a case under this Section is the intention of the accused, i.e., whether the accused enticed the married woman in order to illicit intercourse with her. 

Emperor v. Madan Gopal (1912)

A magistrate of the second class in the Benares district found the applicant guilty of violating Section 498 of the Indian Penal Code by enticing away Musammat Kharag Kumari, the complainant’s wife. The applicant appealed to the District Magistrate but was unsuccessful. Subsequently, he made an application to the High Court to have the conviction overturned on the basis that there is no proof he enticed the woman away and that she is not the complainant’s legally married wife. However, the appeal was rejected on the grounds of the applicant not being able to rebut the presumption of there being a valid marriage. Therefore, it was held in this case that Section 498 IPC would be applicable to only those cases wherein the marriage is recognized and valid in the eyes of the law.

Conclusion 

The status of women at the time when the IPC was enacted, i.e., the 1860s, was different than what it is today. As a result, it was considered that a woman could not commit an offence like adultery. If a woman has engaged in sexual activity with another man outside of marriage, that man is accountable for forcing her into adultery by luring her away with the promise of engaging in sexual activity. The nature of matrimonial offences is multifaceted and multi-causal. With a straitjacket approach, it is impossible to fairly address them. It goes beyond “socioeconomic levels and culture.” However, there are undoubtedly certain underlying factors that are common. The gender-specific nature of these offences makes it clear that the rising cases of matrimonial offences against women are strongly rooted in indifference and negligence, which are essentially the outcome of widespread acceptance of men’s supremacy over women. Therefore, there is still a long way to go for such laws to have optimal usage.

Frequently Asked Questions (FAQs) 

Is an offence committed under this Section compoundable in nature?

The offences committed under Section 498 of the Indian Penal Code are non-cognizable, bailable,and compoundable in nature and can be tried by any magistrate.

Does consent of the wife hold any relevance under this Section?

No. The consent of the wife is irrelevant and is not a defence to a charge under this Section.

References 


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