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                                            REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

            CRIMINAL APPEAL NO(s). 439 OF 2006

RAM CHANDRA BHAGAT                            Appellant (s)

                VERSUS

STATE OF JHARKHAND                 Respondent(s)

O  R  D  E  R

Since there is a difference of opinion, let the papers  

of this case be placed before Hon’ble the Chief Justice of  

India for sending the matter before another Bench.  

........................J. [MARKANDEY KATJU]

NEW DELHI; .........................J. NOVEMBER 24, 2010 [GYAN SUDHA MISRA]

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     REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

            CRIMINAL APPEAL NO(s). 439 OF 2006

RAM CHANDRA BHAGAT                            Appellant (s)

                VERSUS

STATE OF JHARKHAND                 Respondent(s)

O  R  D  E  R

Per Hon’ble Mr. Justice Markandey Katju

1. Heard learned counsel for the parties.

2. The  separation  of  law  from  morality  by  the  British  

positivist jurists Bentham and Austin was a great advance in  

legal history.

3. The  oft  quoted  story  in  this  connection  is  of  the  

famous Lord Chancellor of England Sir Thomas More (1478-

1535) who once went for a walk on a street in London with  

his daughter Margaret and her husband Roper.  On seeing a  

man running on the street Margaret told Sir Thomas “Father,  

get that man arrested”.   

When Sir Thomas asked why, she replied “Because he is a  

bad man.”

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Sir Thomas then asked “But which law has he broken?” to  

which she replied “He has broken the law of God”.   

Sir  Thomas  then  said  “Then  let  God  arrest  him.   I  

arrest a man only if he has broken a law of Parliament.”

4. Often an act may be regarded as immoral by society, but  

it may not be illegal.  To be illegal the act must clearly  

attract some specific provision of the Penal Code, or some  

other statute.  This case illustrates the point.

5. This  appeal  has  been  filed  against  the  impugned  

judgment and order of the High Court of Jharkhand dated  

8.9.2005.   By  the  impugned  judgment  the  appellant’s  

conviction under Section 493 IPC by the trial Court has been  

upheld.

6. Section 493 of the Indian Penal Code states as under :-

“Section  493.   Cohabitation  caused  by  a  man  deceitfully   inducing  a  belief  of  lawful  marriage -   Every man who by deceit causes any  woman  who  is  not  lawfully  married  to  him  to  believe that she is lawfully married to him and  to cohabit or have sexual intercourse with him in  that belief, shall be punished with imprisonment  of either description for a term which may extend  to ten years, and shall also be liable to fine.”

7. The facts of the present case are that the complainant  

was  employed  in  the  Sub  Divisional  Agriculture  office

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General) at Lohardaga in the year 1981.  She got acquainted  

with  the  appellant  herein  and  they  developed  intimate  

relationship so much as that for nine years they cohabited  

together  and  had  two  children  –  a  son  and  a  daughter.  

Thereafter, it is alleged that the appellant turned the lady  

out of his house.

8. The complainant alleged that the appellant had given  

her assurance to marry her and even executed an agreement to  

this effect on 4.6.1990.  The appellant has disputed this  

agreement.

9. There is no finding by the courts below that by deceit  

the appellant caused the complainant to believe that she is  

lawfully  married  to  him.   Rather  the  allegation  of  the  

complainant is that the appellant assured her that he would  

marry her and even entered into an agreement to that effect,  

though  that  agreement  has  been  disputed.   When  the  

complainant’s own case is that the accused had assured her  

that he will marry her it is obvious that she was not under  

any belief that she was already married to him.

10. Section 7 of the Hindu Marriage Act, 1955 reads as  

under :-

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“Section 7.  Ceremonies for a Hindu Marriage -  (1) A  Hindu  marriage  may  be  solemnized  in  

accordance  with  the  customary  rites  and  ceremonies of either party thereto.

(2) Where such  rites and  ceremonies include  the  saptpadi (that is, the taking of seven steps  by the bridegroom and the bride jointly before  the  sacred  fire),  the  marriage  becomes  complete and binding when the seventh step is  taken.”

11. Thus a Hindu marriage can be solemnized in accordance  

with the customary rites and ceremonies of either the boy’s  

caste or the girl’s caste (if it is an inter-caste Hindu  

marriage).   There  is  no  allegation  that  the  appellant  

entered into a marriage with the complainant in accordance  

with Section 7(1) of the Hindu Marriage Act, rather the  

allegation is that he promised to marry her in future. There  

is  also  no  allegation  that  the  appellant  deceived  the  

complainant into believing that they were lawfully married  

e.g.,  by  getting  a  ceremony  performed  other  than  that  

referred  to  under  Section  7(1)  or  by  a  purported  civil  

marriage not in accordance with the Special Marriage Act.  

Hence, in my opinion, the ingredients of Section 493 IPC are  

not satisfied.

12. It is true that the appellant has not behaved like a  

gentleman.  He lived with the complainant for nine years and  

had two children by her, and hence as a decent person he  

should have married her which he did not do.  However, there  

is a difference between law and morality, as already stated

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above.  There are many things which are regarded by society  

as  immoral  but  which  may  not  be  illegal.   If  we  say  

something is illegal then we must point to some specific  

section of the Indian Penal Code or some other statute which  

has been violated.  Merely saying that the person has done  

something  improper  will  not  necessarily  make  the  act  

illegal.

13. There is a story of two of the greatest figures in law,  

Justice Holmes and Judge Learned Hand who once had lunch  

together.  Afterwards, as Holmes began to drive off in his  

carriage, Hand, in a sudden onset of enthusiasm, ran after  

him, crying “Do justice, Sir, do justice.”  Holmes stopped  

the carriage and reproved Hand : “That is not my job.  It is  

my job to apply the law.”  (see ‘The Tempting of America’,  

by Robert Bork).

14. In the present case it can be said that the appellant  

has  not  behaved  like  a  decent  man  but,  in  my  opinion,  

Section 493 IPC is not attracted.  The view I have taken is  

supported by the decisions in Moideenkutty Haji and others  

Vs.   Kunhikoya  and  others,   AIR  1987  Kerala  184  and  

Dr. A.N. Mukerji   Vs.  State, AIR 1969 Allahabad 489.  

15. A  criminal  statute  has  to  be  construed  strictly.  

Unless all its ingredients are satisfied the person cannot  

be punished, otherwise there will be violation of Articles  

20(1) and 21 of the Constitution.  In the present case since  

the  ingredients  of  Section  493  are  not  satisfied  the

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appellant is entitled to acquittal.

16. However, since my learned sister Hon’ble Mrs. Justice  

Gyan Sudha Misra has a different view, let the papers of  

this case be placed before Hon’ble the Chief Justice of  

India for sending the matter before another Bench.  

......................J.         (MARKANDEY KATJU)

NEW DELHI; NOVEMBER 24, 2010.

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 439 OF 2006

Ram Chandra Bhagat        ..Appellant

Versus  

State of Jharkhand                 ..Respondent

O R D E R

GYAN SUDHA MISRA, J.

Having perused the order of my learned Brother Katju, J. in  

this appeal, I respectfully take a different view from the  

one  expressed  therein  which  holds  that  no  offence  under  

Section 493 IPC is made out against the appellant under the  

facts and circumstances of this case.  While there is no  

difficulty in accepting the position that law and morality  

might  stand  on  a  different  footing  although  they  are  

inextricably linked in my perception, yet I agree that legal  

decision cannot be based purely on morality.  However, the  

specific issue with which we are confronted with in this  

appeal  is  confined  to  the  question  as  to  whether  the  

judgment and order of the trial court, first appellate court  

and  the  High  Court  which  have  concurrently  held  the  

appellant guilty of an offence under Section 493 IPC under  

the facts, circumstances and evidence of this case are fit

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to  be  sustained  or  not.   For  this  purpose,  I  have  

meticulously perused Section 493 IPC which for facility of  

reference and relevance, is quoted herein as follows:-

“493. Cohabitation  caused  by  a  man  deceitfully inducing a belief of lawful marriage.  –Every man who by deceit causes any woman who is  not lawfully married to him that she is lawfully  married  to  him  and  to  cohabit  or  have  sexual  intercourse  with  him  in  that  belief,  shall  be  punished with imprisonment of either description  for a term which may extend to ten years, and  shall also be liable to fine.”

2. A perusal of the aforesaid Section, clearly indicates  

that every man who by deceit causes any woman who is not  

lawfully married wife and goes to the extent of cohabitation  

and also has intimate physical relationship with her and the  

woman submits to that man in the belief that he is his  

lawfully married husband, then in my considered opinion, the  

offence under Section 493 IPC can be clearly held to have  

been made out against the accused.   

3. As already indicated in the order of my learned Brother  

Katju, J., the accused/appellant had been living with the  

victim lady for a period of nine years like a normal couple  

which fact has been admitted by the appellant and out of  

their relationship, they also had two children.  It could be  

further  noticed  that  the  accused/appellant  during  this  

continuance  of  relationship,  had  also  filled  up  an  

application  for  information  to  Special  Marriage  Officer,

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Lohardaga  under  Section  5  of  the  Special  Marriage  Act  

regarding marriage on 13.04.1982 marked Ex.3.  In addition  

to  this,  the  accused/appellant  had  also  executed  an  

agreement for marriage certificate on 04.06.1982 on stamp  

paper  of  Rs.1.50  paise  and  admitted  therein  that  he  is  

living a normal family life as a married couple with the  

complainant Sunita Kumari for the last one year (which was  

the  duration  of  relationship  at  the  relevant  time)  and  

Sunita Kumari is his wife, which document has been marked as  

Ex.2.   Further,  voter  list  of  Booth  No.25  of  Village  

Bethathat of the assembly electoral list of Lohardaga (S.T.  

constituency) for the year 1984 marked Ex.6, further voter  

list of the same village Bethathat for the year 1988 marked  

Ex.6/1 and still further voter list of the year 1993 of the  

same  Village  Bethathat  marked  Ex.6/2  indicate  that  the  

complainant Sunita Devi was shown as wife of Ram Chandra  

Bhagat.  All these documents had been in existence to the  

knowledge  of  the  accused/appellant  Ram  Chandra  Bhagat  

wherein he accepted her as his wife in writing in presence  

of the witnesses namely Anant Kumar Das (PW-1), Laxmi Bhagat  

(PW-3), Tiwari Bhagat (PW-4), Birbal Bhagat (PW-5) and Sunil  

Kumar (PW-6).  These witnesses appeared in the Court and  

supported  the  relationship  of  the  accused/appellant  Ram  

Chandra  Bhagat  with  the  complainant  Sunita  Kumari  being  

husband and wife who lived together at different places of  

posting in course of service of the accused/appellant as

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B.D.O., particularly at Churchur Block in the District of  

Hazaribagh (Jharkhand) and in course of their cohabitation,  

a son was born.  The accused/appellant had also solemnized  

the birth ceremony of their daughter and son alongwith the  

friends.   

4. Thus, there were strong documentary evidence in support  

of  the  prosecution  case  that  the  accused/appellant  

deceitfully induced a belief of lawful marriage in the mind  

of  the  complainant  victim  lady  that  they  were  lawfully  

married so that she continued to live with the appellant as  

wife treating him to be her husband for more than nine years  

but the appellant later refused to accept her as his wife  

and  drove  her  out.   The  appellant  thus  had  deceitfully  

induced the complainant Sunita Kumari to believe that she  

was lawfully married to him as he had executed an agreement  

for issuing marriage certificate (Ex.2) and also filled up  

application  form  to  submit  before  the  Special  Marriage  

Officer (Ex.3) to give assurance to her.  It is further on  

record  that  although  no  ceremony  of  marriage  took  place  

between them, but as per social custom prevailing in the  

District  of  Lohardaga  among  the  members  of  the  Oraon  

community, if a young man lives with a young girl in his  

house for a long period, she is deemed to be his wife which  

is recognized as marriage.  Thus, in view of the oral and  

documentary  evidence  on  record,  the  ingredients  under

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Section 493 IPC is well established and the offence under  

the said Section is clearly made out against the appellant.  

Hence, even though the appellant and the complainant victim  

lady Sunita had not been married by performing any ritual,  

the  evidence  on  record  clearly  indicate  that  there  were  

overwhelming  material-documentary  evidence  as  well  as  

customary practice to induce a belief to the victim lady  

Sunita who could infer that she was lawfully married to the  

accused/appellant  with  whom  she  cohabited  and  also  had  

physical relationship out of which the two children had been  

born.

5. We have to bear in mind that the three ingredients  

necessary to be established for bringing home the offence  

under Section 493 IPC are:-  

i)the accused practiced deception;

ii)such  deceit  was  to  induce  a  woman  

(complainant) to believe that she was lawfully  

married to him; and

iii)there was cohabitation or sexual intercourse  

as a result of the deception.

6. In my humble opinion, the aforesaid three ingredients  

for the offence under Section 493 IPC in the light of the  

evidence recorded hereinbefore, are clearly fulfilled in the  

present case.  

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7. It is no doubt true that the essence of an offence  

under this section consists in the practice of deception by  

a man on a woman, in consequence of which she is led to  

believe that she is lawfully married to him while in fact  

she is not lawfully married to him.  Thus, what is required  

is  that,  by  deceitful  means,  the  accused  must  induce  a  

belief of a lawful marriage and then make the woman cohabit  

with him.  But Section 493 although emphasizes that the  

victim  woman  should  be  induced  the  belief  that  she  is  

lawfully  married  to  the  accused,  this  Section  also  lays  

emphasis on deceit caused by the man who is not lawfully  

married to the victim and mere inducement of belief of a  

lawful marriage is sufficient to establish the guilt under  

Section 493 of the IPC.

8. In so far as the ingredients of a valid marriage under  

the Hindu Marriage Act, 1955 is concerned, we have to bear  

in mind that we are not dealing with a case herein where the  

victim lady is claiming a civil remedy viz. the right of  

inheritance, merely on the basis of her cohabitation with  

the accused/appellant asserting it as a lawful marriage.  

What  we  are  confronted  to  deal  with  in  this  matter,  is  

whether the ingredients of criminal offence under Section  

493 IPC can be held to have been made out so as to hold the

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accused/appellant guilty of an offence under Section 493 IPC  

despite the overwhelming evidence, that the victim lady and  

the appellant had openly cohabited for long nine years and  

during this period, the accused/appellant had also executed  

an  agreement  of  marriage  and  in  addition  had  filed  an  

application for registration of their marriage under the  

Special Marriage Act.  Besides this, in several official  

documents  which  are  the  voter  lists  of  the  concerned  

consecutively constituency for several years, she had been  

shown to be the wife of the accused/appellant.  Thus, there  

were sufficient documentary evidence to induce a belief to  

the complainant lady that she had been lawfully married to  

the accused/appellant although they had not been married  

according to the rituals.   

9. Section  493  IPC  in  my  opinion  do  not  presuppose  a  

marriage between the accused and the victim necessarily by  

following a ritual or marriage by customary ceremony.  What  

has been clearly laid down and emphasized is that there  

should be an inducement of belief in the woman that she is  

lawfully married to the accused/appellant and the inducement  

of belief of a lawful marriage cannot be interpreted so as  

to mean or infer that the marriage necessarily had to be in  

accordance  with  any  custom  or  ritual  or  under  Special  

Marriage Act.  If the evidence on record indicate inducement

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of a belief in any manner in the woman which cannot possibly  

be enlisted but from which it can reasonably be inferred by  

ordinary prudence that she is a lawfully married wife of the  

man accused of an offence under Section 493 IPC, the same  

will have to be treated as sufficient material to bring home  

the guilt under Section 493 IPC.  Interpretation of the  

Section in any other manner including an assertion that the  

marriage should have been performed by customary rituals or  

in similar manner only in order to establish that a belief  

of marriage had been induced, is bound to frustrate the very  

object and purpose of the provision for which it has been  

incorporated in the Indian Penal Code which is clearly to  

prevent the deceitful act of a man inducing the belief of a  

lawful marriage for the purpose of cohabitation merely to  

satisfy his lust for sexual pleasure.  

10. Hence,  I  have  not  been  able  to  persuade  myself  to  

concur with the view taken by Brother Katju, J.  This appeal  

therefore will have to be placed before the Hon’ble Chief  

Justice of India for referring it to the appropriate Bench.

........................J.                          (Gyan Sudha Misra)

New Delhi, November 24th, 2010.