- (1.) This appeal is directed against an order of conviction under Section 493, Indian Penal Code and sentence to (sic) for three years and a fine of Rs. 1,000, in default, to suffer imprisonment for one year thereunder. On May 27, 1969, P.W. 1 Sahida Khatun filed a complaint against the Appellant alleging therein that the accused had cohabited with her by deceitfully suppressing the fact that he had given talak to her and that as such she had ceased to be his lawfully married wife. On such complaint the accused was summoned under Sections 376/ 493, Indian Penal Code. The accused was committed to the Court of Sessions after an enquiry under chap. XVIII of the Code of Criminal Procedure, 1898, by the learned Magistrate. The charge against him was under Section 493, Indian Penal Code, which runs as follows: That you between 2.9.69 and 19.4.69 at Khidirpore, P.S. Harihar Para, by deceit caused a certain woman to wit, Sahida Khatun who was not lawfully married to you having ceased to be so married to believe that she was lawfully married to you and in that belief cohabit or have sexual intercourse with you and thereby committed an offence punishable under Section 493 of the Indian Penal Code.... The learned Sessions Judge, Murshidabad, found the accused guilty of the aforesaid offence and convicted and sentenced him as indicated above. Facts which are no longer in dispute may be briefly stated as follows : The accused/Appellant and Sahida Khatun were married according to Mohammedan law on Falgoon 10, 1372 B.S., corresponding to February 22, 1966. After the marriage Sahida Khatun spent about nine months in the house of the Appellant. Thereafter she went to the house of her father P.W. 2 Sahiduzaman. In July/August 1968, she was again taken back to the house of her husband, viz. the Appellant. She lived there up to April 20, 1969, as the wife of the Appellant. On that date she was taken back by the Appellant to the house of her father where she is still residing. At that time she was carrying for about four months as a result from her cohabitation with the Appellant. While at her father's house she received a registered envelope containing a copy of a document j which purported to be talaknama given to her by her husband. As the said document did not mention the date on which her husband had given her talak search was made in the office of the Registrar of Marriage and Divorce and a certified copy of the talak was obtained from there. On obtaining the certified copy the date of talak came to be known to Sahida Khatun as Bhadra 17, 1375 B.S., corresponding to September 2, 1968. On the basis of such facts it was found by the learned trial Judge that although the Appellant had given talak to Sahida Khatun on September 2, 1968, he had cohabited with her by deceitfully suppressing the fact of such talak and that, as such, he was guilty of the offence under Section 493, Indian Penal Code.
(2.) The defence of the Appellant was that he belonged to Ahaladis community of the Sunni sect of the Muslim and that this sect recognised only that kind of talak which was pronounced once in each three successive tahar and during the period of which the husband abstained from the exercise of conjugal right with the wife. Therefore, according to the defence talak mogallezai i.e. three talaks as recorded in the marriage register was an invalid and revocable talak. It was further the defence that the Appellant was compelled to give such talak because of the demands made by the father of Sahida Khatun to give some lands to her and that the Appellant never intended to give talak to her and was ever willing to take her back.
(3.) Mr. Balai Chandra Ray, learned Advocate, with Mr. Quadrat-e-Kabir appearing for the accused/Appellant contended before us that the prosecution had failed to establish that the accused gave any valid talak to Sahida Khatun and that in any event the ingredients of an offence under Section 493 of the Indian Penal Code were missing in the present case. Mr. Dilip Kumar Banerjee (II), Learned Advocate appearing for the State, supported the judgment of the trial Court.;