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PETITIONER: ALAMGIR & ANOTHER

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 14/11/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1959 AIR  436            1959 SCR  Supl. (1) 464  CITATOR INFO :  R          1972 SC1823  (10)

ACT: Criminal Trial-Detaining married woman with criminal  intent -Detaining,  if  must  be against  will  of  woman-Sentence, enhancement  of-Indian  Penal Code, 1860 (XLV of  1860),  s. 498-Code of Criminal Procedure, 1898 (V of 1898), s. 439.

HEADNOTE: One R, the wife of S, disappeared from her husband’s  house. She  was  traced to the house of the appellants, A  and  his brother B. When S went there and asked A to let his wife  go with him A told him that he had married her and B threatened S  and  asked him to go away.  The appellants  were  charged under  s.  498 Indian Penal Code for detaining R  when  they knew  or had reason to believe that she was the wedded  wife of  S, with intent to have illict intercourse with her.  The appellants  pleaded that R was not validly married to S  and that  she had not been detained by them inasmuch as she  was tired  of living with S and had voluntarily and of her  free will  come  to  stay with them.  The  Magistrate  found  the appellants  guilty,  convicted them and  sentenced  them  to undergo simple imprisonment for two months each.  On  appeal the Sessions Judge confirmed the conviction but reduced  the sentence to a fine of Rs. 50/- each.  The appellants filed a revision  before  the High Court.  The High Court  issued  a notice  of  enhancement  and after  hearing  the  appellants dismissed the revision and enhanced the sentence to rigorous imprisonment for six months each. Held,  that  detention in s. 498 means keeping back  a  wife from her husband or any other person having the care of  her on  behalf  of  her husband.  Such keeping back  may  be  by force; but it need not be by force.  It can be the result of persuasion,  allurement  or  blandishments  which  may  have either  caused  the willingness of the woman,  or  may  have encouraged, or co-operated with, her initial inclination  to leave her husband.  The object of the section is to  protect the  rights of the husband and it cannot be any  defence  to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for the willingness has not detained her.  A was rightly convicted as the charge  of

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detention  was  proved against him on the  findings  of  the Courts below that he had offered to marry R and had  thereby either  persuaded or encouraged her to leave  her  husband’s house.  But the charge was not made out against B as it  was not proved that he had offered any inducement,  blandishment or allurement to R for leaving the protection of her husband and for refusing to return to him. 465 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, (19I3) Punj.  L.R. 1066, approved. 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, disapproved. Held  further, that the High Court was not justified in  en- hancing  the sentence to six months  rigorous  imprisonment, and it should have only restored the sentence passed by  the trial  Court.  The question of sentence is normally  in  the discretion of the trial Court and the High Court can enhance the  sentence  only  if it is satisfied  that  the  sentence imposed  by the trial Court is unduly lenient, or,  that  in passing   the  order  of  sentence,  the  trial  Court   had manifestly  failed  to  consider the  relevant  facts.   The sentence  of two months simple imprisonment imposed  by  the trial  Court was not so unduly or manifestly lenient as  not to meet the ends of justice.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 187  of 1956. Appeal  by special leave from the judgment and  order  dated December  7,  1955,  of the Patna  High  Court  in  Criminal Revision  No. 875 of 1954, arising out of the  judgment  and order  dated  May 31, 1954, of the Court of  the  Additional Sessions Judge at Arrah in Criminal Appeal No. 293 of 1953. B.   K. Saran and K. L. Mehta, for the appellants. B.   H. Dhebar and T. M. Sen, for the respondent. 1958.  November 14.  The Judgment of the Court was delivered by GAJENDERAGADKAR,  J.-This  criminal appeal  raises  a  short question  about  the construction of the word  "  detains  " occurring in a. 498 of the Indian Penal Code.  It arises in’ this way.  The two appellants were charged before the  trial magistrate  under  s. 498 of the Code in that  on  or  about October  27,  1952, at the village Mohania  they  wrongfully detained Mst. 59 466 Rahmatia, the legally married wife of the complainant  Saklu Mian,  when they knew or had reason to believe that she  was the  wedded  wife  of the, complainant  and  was  under  his protection,  with  intent to have illicit  intercourse  with her.   The  prosecution  case was that  Mst.   Rahmatia  had disappeared  from her husband’s house on October  21,  1952; the complainant made J. search for her for several days  but

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was not able to trace her whereabouts.  Ultimately he  filed a  complaint at the police station after he was informed  by Shakoor  Mian (P.  W. 4) that he had seen the  complainant’s wife  at the house of the two appellants.   The  complainant then went to the house of the appellants along with  Shakoor Mian  (P.  W. 4), Musa Mian (P. W. 2) and Suleman  Mian  (P. W.  3);  they saw the woman in the house of  the  appellants whereupon  the complainant asked appellant No. I Alamgir  to let  his wife go with him but appellant No. I told him  that he  had  married her and appellant No. 2 warned him  to  get away and said that, if he persisted, he would be driven out. This  story is corroborated by the three companions  of  the complainant. The  appellants  denied the charge.  They pleaded  that  the complainant had not validly married -the woman and that  she had not been detained by them.  According to them, the woman was  tired of living with the complainant and that  she  had voluntarily  and  of  her free will come to  stay  with  the appellants. The  learned  trial  magistrate  believed  the   prosecution evidence,  rejected  the pleas raised by the  defence,  con- victed  the  appellants of the charge framed  and  sentenced them  to  undergo simple imprisonment for two  months  each. This older of conviction and sentence was challenged by  the appellants  by  their appeal before the court  of  sessions. The   appellate  court  confirmed  the  conviction  of   the appellants   but   reduced  their   sentence   from   simple imprisonment  for  two  months to a fine of  Rs.  50  or  in default  simple  imprisonment  for  one  month  each.    The appellants  then  moved  the  High Court  at  Patna  in  its revisional  jurisdiction.  When the  revisional  application came  to  be heard before Choudhary, J., the  learned  judge thought 467 that  the  appellate  court  should  not  have  reduced  the sentence  imposed on the appellants by the trial  magistrate and  so  he issued a notice against the  appellants  calling upon  them  to show cause why their sentence should  not  be enhanced.   This notice and the main revisional  application were  ultimately  heard  by Ramaswamy  and  Imam,  JJ.,  who confirmed the order of conviction and enhanced the  sentence against  both the appellants by ordering that each  of  them should   suffer  six  months’  rigorous  imprisonment.    An application  made by the appellants to the High Court for  a certificate  to  appeal  to this Court  was  rejected.   The appellants  then applied for and obtained special  leave  to appeal  to  this Court.  That is how this  appeal  has  come before us for final disposal. On behalf of the appellants, Mr. B. K. Saran has urged  that the  evidence in the case clearly shows that the  woman  was dissatisfied  with  her husband and had left his  house  and protection voluntarily and of her free will.  If having thus left the house she came to stay with the appellants and they allowed  her to stay with them, it cannot be said that  they have  detained her within the meaning of s. 498.   According to him, the word " details " used in s. 498 must necessarily imply that the woman detained is unwilling to stay with  the accused  and has been compelled so to stay with him  against her will, and desire.  It is difficult to imagine that, if a woman is willing to stay with a person, it can be said  that the  person  has  detained  her.   That  is  not  the  plain grammatical  meaning  of the word " detains ".  It  is  this argument  which calls for our consideration in  the  present appeal. At  the outset it would be relevant to remember that s.  498

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’occurs in Ch.  XX of the Indian Penal Code which deals with offences.  relating to marriage.  The provisions of s.  498, like those of s. 497, are intended to protect the rights  of the  husband  and not those of the wife.  The  gist  of  the offence  under s. 498 appears to be the deprivation  of  the husband of his custody and his proper control over his  wife with the object of having illicit intercourse with her.   In this connection it would be material to compare and contrast the 468 provisions  of  s.  498 with those of s. 366  of  the  Code. Section  366 deals with cases where the woman  kidnapped  or abducted  is an unwilling party and does not respond to  the criminal  intention  of  the accused.  In  these  cases  the accused intends to compel the victim afterwards to marry any person against her will or to force or seduce her to illicit intercourse.   In other words s. 366 is intended to  protect women  from  such abduction or kidnapping.  If it  is  shown that  the  woman  who is alleged to have  been  abducted  or kidnapped  is  a  major and gave her free  consent  to  such abduction  or  kidnapping,  it may prima  facie  be  a  good defence to a charge under s. 366.  On the other hand s.  498 is intended to protect not the rights of the wife but  those of  her husband; and so prima facie the consent of the  wife to deprive her husband of his proper control over her  would not  be material.  It is the infringement of the  rights  of the   husband   coupled  with  the  intention   of   illicit intercourse that is the essential ingredient of the  offence under  a. 498.  Incidentally it may be pointed out that  the offence under s. 498 is a minor offence as compared with the offence under s. 366. The policy underlying the provisions of s. 498 may no  doubt sound inconsistent with the modern notions of the status  of women  and  of  the  mutual  rights  and  obligations  under marriage.  Indeed Mr. Saran vehemently argued before us that it was time that ss. 497 and 498 were deleted from the Penal Code.   That,  however, is a question of policy  with  which courts  are not concerned.  It is no doubt true that if  the words  used in a criminal statute are reasonably capable  of two  constructions, the construction which is favourable  to the  accused  should  be preferred; but  in  construing  the relevant words, it is obviously necessary to have due regard to the context in which they have been used; and, as we will presently  point out, it is the context in which  the  word" detains  "  has been used in s. 498  that  is  substantially against the construction for which the appellant contends. Section 498 provides: 469 " 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. It would be noticed that there are three ingredients of  the section.   The offender must take or entice away or  conceal or  detain  the wife of another person from such  person  or from  any other person having the care of her on  behalf  of the said person.  He must know or has reason to believe that the  woman  is the wife of another person; and  the  taking, enticing, concealing or detaining of the woman must be  with intent  that  she  may have  illicit  intercourse  with  any person.   It  is  clear that if  the  intention  of  illicit

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intercourse  is  not proved the presence of  the  first  two ingredients would not be enough to sustain the charge tinder s. 498.  It is only if the said intention is proved that  it becomes   necessary  to  consider  whether  the  two   other ingredients are proved or not. It  is  plain that four different kinds of  cases  are  con- templated  by  the section.  A woman may be  taken  away  or enticed  away or concealed or detained.  There is  no  doubt that when the latter part of the section refers to any  such woman,  it does not mean any woman who is taken  or  enticed away  as described in the first part, but it refers  to  any woman  who is and whom the offender knows or has  reason  to believe  to  be  the  wife of any  other  man.   It  is  not seriously disputed that in the first three classes of  cases the  consent  of the woman would not matter if it  is  shown that  the  said  consent is induced  or  encouraged  by  the offender by words or acts or otherwise.  Whether or not  any influence  proceeding from the offender has operated on  the mind of the woman or has co-operated with or encouraged  her inclimations  would  always be a question of fact.   If,  on evidence,  the court is satisfied that the act of the  woman in 470 leaving  her husband was caused either by the  influence  of allurement  or blandishments proceeding from  the  offender, that  may be enough to bring his case within either  of  the three  classes  of  cases  mentioned by  s.  498.   In  this connection,  when the consent or the free will of the  woman is  relied  upon  in defence, it  is  necessary  to  examine whether  such  alleged consent or free will was not  due  to allurement or blandishments or encouragement proceeding from the offender. It  is,  however, urged that, when the latter  part  of  the section  speaks of detention, it must prima facie  refer  to the  detention  of  a woman against her  will.   It  may  be conceded that the word " detains" may denote detention of  a person  against his or her will ; but in the context of  the section  it is impossible to give this meaning to  the  said word.  If the object of the section had been to protect  the wife   such  a  construction  would  obviously   have   been appropriate;  but,  since the object of the  section  is  to protect the rights of the husband, it cannot be any  defence to  the  charge  to say that, though the  husband  has  been deprived  of his rights, the wife is willing to  injure  the said  rights  and so the person who is responsible  for  her willingness has not detained her.  Detention in the  context must mean keeping back a wife from her husband or any  other person having the care of her on behalf of her husband  with the requisite intention.  Such keeping back may be by force; but  it  need  not be by force.  It can  be  the  result  of persuasion,  allurement  or blandishments which  may  either leave  caused  the  willingness of the woman,  or  may  have encouraged, or co-operated with, her initial inclination, to leave  her husband.  It seems to us that if the  willingness of  the  wife is immaterial and it cannot be  a  defence  in cases falling tinder the first three categories mentioned in s.  498, it cannot be treated as material factor in  dealing with the last category of case of detention mentioned in the said  section.   Therefore, we are satisfied that  the  High Court was right in holding that the charge of detention  has been  proved  against appellant No. I inasmuch as  both  the courts of facts have found that 471 he  had offered to marry Mst.  Rahmatia and  thereby  either persuaded  or encouraged her to leave her  husband’s  house.

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It  may be that Rahmatia was dissatisfied with  her  husband and  wanted  voluntarily to leave her husband; but,  on  the evidence,  it  has  been  held  that  she  must  have   been encouraged or induced not to go back to her husband  because she  knew that she would find ready shelter  and  protection with  appellant  No. 1 and she must have looked  forward  to marry  him.  In fact appellant No. 1 claims to have  married her.   Thus there can be no doubt that he intended  to  have illicit sexual intercourse with her.  That is the effect  of concurrent findings of fact recorded against appellant No. I ;  and  it  would  not be open to  him  to  challenge  their correctness or propriety in the present appeal. This section has been the subject-matter of several judicial decisions  and  it appears that, except for a few  notes  of dissent,  there  is a fair amount of unanimity  of  judicial opinion in favour of the construction which we feel inclined to place on the word " detains " in s. 498.  It is, however, true that the relevant decisions, to some of which we  would presently  refer disclose a striking difference of  approach in  dealing  with questions of fact.  It would  appear  that though the relevant portion of the section has received  the same construction in dealing with same or similar facts, the learned  judges  have  differed in their  conclusion  as  to whether the accused person had been guilty of conduct  which would  bring  his case within s. 498.  This, however,  is  a difference  in  the  method  of  approaching  evidence   and assessing its effects.  It would be futile and even improper to  consider whether a particular conclusion drawn from  the specific  evidence  adduced in the case was  right  or  not. What  is important in such cases is to see how  the  section has  been construed and, as we have just indicated,  in  the matter  of  construction  there appears  a  fair  amount  of unanimity.  Let us now refer to some of the decisions  cited before us. In  1868, the Madras High Court held in Sundara  Dass  Tevan (1) that depriving the husband of his (1)  (1868) IV Mad.  H.C.R. 20. 472 proper control of his wife for the purpose of illicit inter- course is the gist of the offence just as it is the  offence of  taking  away  a  wife under  the  same  section;  and  a detention occasioning such deprivation may be brought  about simply by the influence of allurement and blandishment.   On the facts of the case, however, the court was not  satisfied that  the  accused  bad  offered  any  such  allurement   or blandishment  and so the order of conviction passed  against the appellant was quashed. It appears that the  construction put by the Madras High Court on s. 498 in this case has been generally  accepted in the said High Court (Vide:  Ramaswamy Udayar v. Raju Udayar (1) ). The Bombay High Court has taken the same view in Emperor  v. Jan  Mahomed  (2).  It was held by the High Court  that  the offence contemplated by & 498 is complete if it appears that the accused went away with the woman in such a manner as  to deprive  her  husband of the control of his wife;  the  fact that the woman accompanied the accused of her own free  will does not diminish the criminality of the act.  Even in  this case, the court was unable to discover any evidence,  direct or  indirect,  about  the intention of the  accused  or  any allurement  or blandishment offered by him and so the  order of  conviction  passed against the accused  was  set  aside. This  question came to be considered by the said High  Court again in Emperor v. Mahiji Fula (3).  Mr. Justice Broomfield who  delivered the main judgment of the Bench has  expressed the view that " the word I detains ’ means, by  deprivation,

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and  according to the ordinary use of the language  I  keeps back"’;  and  he  adds that ,there may be  various  ways  of keeping back.  It need not necessarily be by physical force. It  may  be by persuasion or, as the Court  "  (Madras  High Court) " has observed in this particular case" (Sundara Dass Thevan (4)) " by allurement or blandishment ". On the facts, however, it appeared to the trial court that the conduct  of the accused did not bring his case within the mischief of s. 498.  The wife of the complainant had been taken (1)  A.I.R. (1953) Mad. 333. (3)  (1933) I.L.R. 58 Bom. 88, 92. (2)  (1902) IV Bom.  L. R. 435. (4)  (1868) IV Mad.  H. C. R. 20. 473 away  by  her brother and she was  subsequently  married  by natra marriage to the accused.  The complainant learnt about this  incident and went to the accused to ask him  to  allow his  wife to go back to him.  On seeing the complainant  and his  friends  the  accused  came  out  with  a  dharia   and threatened  the complainant and his companions who then  re- turned  to their village.  The conduct of the accused’  when the   complainant  approached  him,  it  was  said,   cannot necessarily  indicate  that  the accused  had  detained  the woman.   This  was the’ view taken by the  trial  court  who acquitted  the  accused ; on appeal the High  Court  saw  no reason to differ and so the order of acquittal was confirmed by  it.  Divatia, J., who delivered the concurring  judgment apparently  differed from Broomfield, J., in regard  to  the construction  of  the word " detains ". He agreed  that  the scheme  of  s.  498  showed that though  the  woman  may  be perfectly  willing to go with the man the offence of  taking or  enticing away would occur because it simply consists  of taking  or enticing away a woman without anything more;  but according  to him, in the latter part of the section,  which speaks of concealing or detaining the woman, the woman would be  detained  only  if she is prevented from  going  in  any quarter  where  she  wants  to go.   In  our  opinion,  this construction  is not sound.  It is not easy to see  how  the act  of  concealing the woman would necessarily  import  any considerations  of  the  consent of  the  woman  ;  besides, according to Divatia, J., himself, the woman’s Consent would be irrelevant in the cases of -taking or enticing her  away. If that be so, it is difficult to make her consent  relevant and  decisive  in  dealing  with  the  cases  of  detention. Unfortunately  the  learned judge does not  appear  to  have appreciated the fact that the primary and the sole object of s. 498 is to protect the husband’s rights and not the rights of the wife.  If it is shown that the woman’s inclination to stay  away  from  her  husband  was  either  instigated   or encouraged  by  the offender, she can be said to  have  been detained or kept away from her husband within the meaning of the section 60 474 though  at the time of the detention she may be  willing  to say with the offender.  The same view has been expressed  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).  We may point out that in both these  cases the court was have detained the woman. The  Calcutta  High  Court appears to  have  put  a  similar construction  on the word "detention".  In Prithi Missir  v. Harak Nath Singh (3) it has been held by the said High Court that  "  the  word  ’ detention’  is  ejusdem  generis  with enticement  and  concealment.  It does not  imply  that  the

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woman  is  being  kept against her will but  there  must  be evidence  to show that the accused did something  which  had the  effect  of preventing the woman from returning  to  her husband  ". On the merits, however, the court held that  the learned  trial  magistrate  had not  come  to  any  definite finding of fact.  In fact it did not appear that the accused was  keeping the complainant’s wife as his mistress; and  on the whole, the court was not satisfied that the accused  was responsible  for the conduct of the complainant’s  wife  for leaving  her husband’s house and so detention was  held  not proved  against  the accused.  In Mabarak  Sheikh  v.  Ahmed Newaz  (4)  the same High Court held that there  can  be  no detention  of a woman within the meaning of s.  498,  second part,  if the woman is an absolutely free agent to  go  away from the person charged whenever she likes.  It appears that the learned judges were inclined to hold that there could be no detention if the woman was an absolutely free agent to go away  from the person charged whenever she likes to  do  so; and  in support of this view they have referred to  some  of the  decisions  which  we  have  already  considered.   With respect, it appears that the effect of the earlier decisions has  not been properly considered and the findings  of  fact recorded  in the said decisions are assumed to  lend  colour to, and modify, the construction of the section (1)   (1937) 39 Bom.  L.R. 61. (3)  I.L.R. [1937] 1 Cal. 166. (2)   A.I.R. (1943) Bom. 179. (4)  (1939) 43 C.W.N. 980. 475 adopted by them.  Besides, the relevant observations  appear to  be  obiter because, on the facts, it was found  in  this case  that the woman was not a free agent and so the  charge against  the accused under s. 498 was held established.   In Bipad Bhanjan Sarkar v. Emperor (1), Henderson and Khundkar, JJ., have considered the word " detains " in the same manner as  we have done.  However, as in many other cases, in  this case also, the court found that there was absolutely nothing to show that the accused had done anything which could bring his case within the mischief of s. 498. The  Patna High Court, in Banarsi Raut v. Emperor  (2),  has held  that providing shelter to a married woman is  such  an inducement  as to amount to detention within the meaning  of s.  498.   This case shows that where a  married  woman  was found  living in the house of the accused for some time  and sexual  intercourse between them had been  established,  the court was inclined to draw the inference that there was per- suasion or inducement of the woman as would come within  the meaning  of  the word " detention ". This is a case  on  the other  side  of the line where on facts  the  inference  was drawn against the accused. The  Lahore High Court has taken a similar view as early  as 1913 in Bansi Lal v. The Crown (3 ). The court has held that where  the accused had provided a house for the woman  where she stayed after deserting her husband under the  protection of the accused as his mistress, it was active conduct on his part  which was sufficient to bring him within the terms  of s.  498.  In 1939, however, a Division Bench of  the  Lahore High  Court  has taken a contrary view in  Harnam  Singh  v. Emperor (4).  In this case the revisional application  filed by  Harnam  Singh against his conviction under  s.  498  was first  argued before Din Muhammad, J., who referred it to  a Division  Bench because he thought that the question of  law raised  was of some importance.  In his  referring  judgment the  learned judge mentioned some of the relevant  decisions to which his attention was drawn and indicated his own  view

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that (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. 476 the word " detains " would naturally imply some overt act on the part of the person who detains in relation to the person detained.   He  thought  that mere  blandishment  would  not constitute  any relevant factor in the matter of  detention. The   matter  was  then  placed  before  a  Division   Bench consisting  of Young, C. J., and Blacker,  J.  Unfortunately the  judgment  of the Division Bench does  not  discuss  the question  of the construction of s. 498 ; it merely  records the  conclusion  of  the  court in these  words:  "  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 added that they were of the opinion that the word "  detains " cannot be reasonably construed as having reference to  the husband.    In  our  opinion,  these  observations  do   not correctly  represent  the  true purport and  effect  of  the provisions of s. 498. The  position, therefore, is that, on the findings  of  fact made by the lower courts against appellant No. I it must  be held that he has been rightly convicted under s. 498. That takes us to the question of sentence imposed on him  by the  High  Court  in its revisional  jurisdiction.   We  are satisfied that the High Court was not justified in directing appellant  No.  I to suffer rigorous  imprisonment  for  six months  by  way  of  enhancement of  the  sentence.   It  is unnecessary  to emphasise that the question of  sentence  is normally  in the discretion of the trial judge.  It  is  for the   trial  judge  to  take  into  account   all   relevant circumstances  and decide what sentence would meet the  ends of justice in a given case.  The High Court undoubtedly  has jurisdiction  to enhance such sentence under s. 439  of  the Code  of  Criminal Procedure; but this jurisdiction  can  be properly exercised only if the High Court is satisfied  that the  sentence imposed by the trial judge is unduly  lenient, or, that, in passing the order of sentence, the trial  judge had manifestly failed to consider the 477 relevant facts.  It may be that the High Court thought  that the  appellate order passed by the Sessions Judge  modifying the  original  sentence was wrong, and in  that  sense,  the issue  of  notice  under  s. 439 of  the  Code  of  Criminal Procedure  against  appellant No. 1 to show  cause  why  his sentence  should  not be enhanced may have  been  justified; but,  in enhancing the sentence, the High Court  should,  we think, have restored the sentence passed by the trial  judge himself.   It is true that, in enhancing the  sentence,  the High  Court  has  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  ". We are inclined to think that the  considera- tion set out in this observation is really not, very helpful and  not decisive because, as we have already  observed,  s. 498  does not purport to protect the rights of women but  it safeguards the rights of husbands.  Besides, in the  present case,  it  is clear that Mst.  Rahmatia, who is a  woman  of loose   moral   character,   was   dissatisfied   with   the

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complainant,  who is her second husband, and was willing  to marry appellant No. 1. In such a case, though appellant  No. I is guilty under s. 498, it is difficult to accept the view of  the High Court that the sentence of two  months’  simple imprisonment  imposed  on  him, by the trial  court  was  so unduly  or  manifestly lenient as not to meet  the  ends  of justice.   It would not be right for the appellate court  to interfere  with  the order of sentence passed by  the  trial court merely on the ground that if it had tried the case  it would  have imposed a slightly higher or  heavier  sentence. We  would  accordingly modify the order of  sentence  passed against  appellant  No. 1 by reducing it to that  of  simple imprisonment for two months. The  case of appellant No. 2 is clearly different from  that of  appellant  No. 1. The findings of fact recorded  by  the courts below do not implicate appellant No. 2 in the act  of persuasion or offering blandishments or inducements to  Mst. Rahmatia.  The only evidence against this appellant is  that when  the complainant went to take away his  wife  appellant No. 2 threatened 478 him.   The record shows that appellant No. 2 is the  brother of  appellant  No.  1; and, if  knowing  that  Rahmatia  had married his brother, appellant No. 2 told the complainant to walk away, that cannot legally justify the inference that he must have offered any inducement, blandishment or allurement to  Rahmatia for leaving the protection of her  husband  and refusing to return to him.  Indeed the courts below have not considered the case of this appellant separately on its  own merits at all.  In our opinion, the conviction of  appellant No.  2 is not supported by any evidence on the record.   The result  is  the  appeal  preferred by  appellant  No.  2  is allowed, the order of conviction and sentence passed against him  is  set  aside and he is ordered to  be  acquitted  and discharged. Appeal of appellant No. 1 dismissed. Appeal of appellant No. 2 allowed.