JUDGMENT
R.D. Shukla, J.
1. This revision has been filed against the judgment and order dated 14.8.1985 of the IV Additional Sessions Judge, Bhopal passed in Criminal Appeal No. 57 of 1983 arising out of the judgment and order dated 19.7.1983 of Judicial Magistrate First Class Bhopal passed in Cr. Case No. 2436/84, whereby conviction of the accused under Section 438 of the Indian Penal Code and sentence of fine of Rs. 500/- in default of payment of fine R.I. for two months has been confirmed.
2. Brief history of the case are that non-applicant No. 1 Bhagwandas filed a complaint against accused on 21.5.1978 with the assertions that Maltibai is his married wife. She was missing from his house from 12.4.1977, and was subsequently found in the company of accused who was keeping her as his wife despite known edge that Maltibai is wife of the complainant. A child has also been begotten from that relationship. The accused detailed his wife against his wishes and consent.
3. The accused abjured the guilt and pleaded that there was a divorce between the complainant and Maltibai and that complainant had accepted some money in lieu of it. The trial Court convicted the accused as above and his conviction has been upheld in appeal, hence this revision.
4. Learned Counsel for the applicant has submitted that since the complainant accepted money and, therefore, the intercourse be deemed to be with connivance and consent of the complainant, hence it will not be a case of illicit intercourse. He further submitted that there is no charge of detention and the fact of taking the wife (Maltibai) away by the accused is not proved.
5. None appeared for the respondent No. 1 Bhagwandas. Counsel for State Shri P.N. Pathak, Penal Lawyer supported the conviction and submitted that the officence under Section 498 is a continuing offence and therefore, even if some consideration has been taken by the complainant, then too the subsequent act of the accused constitute an offence.
6. The prosecution examined P.W. 1 Bhagwandas P.W. 2 Dalsingh P.W. 3 Baboolal, P.W. 4 Shambhudayal in support of its case. The accused examined D.W. 1 Babulal in support of his contention. D.W. 2 Rajesh Kumar son of complainant and Maltibai was examined subsequently with permission of the Court. D.W. 2 Rajesh Kumar stated that the accused took away his another alongwith him in the absence of his father. But this fact does not find place in the complaint. This witness has also admitted that he did not inform his father and, therefore, this part of evidence appears to be on after thought. However, from state and of other prosecution witnesses it has been proved beyond reasonable doubt that Maltibai was wife of the complainant, she was living with the accused and that Maltibai has delivered a child after that. It would therefore, be presumed that there has been co-habitation between then and the child was begotton thereafter. However, on perusal of charge it appears that this fact of detention has not been mentioned. Only the fact of taking away the wife Maltibai has been mentioned. D.W. 1 has proved documents Ex. D-l and D-2. D-l is a compromise deed and D-2 is a receipt executed by the complainant. The complainant has also admitted the execution of these two documents. However, he has stated that he did not know about the contents of the documents.
7. Once the fact of execution is admitted by the complainant, burden lies on the complainant to prove that the documents would be read other than it purported to be. He has filed to discharge the duty. In the opinion of this Court, therefore, documents Ex. D-l and D-2 have been proved by the defence.
8. From the plain reading of these two documents, it appears that complainant has not only accepted the ornaments of Maltibai but has also accepted money. He further accepted that he would not raise any dispute against this accused. This shows that the complainant convived and consanted for Maltibai’s living with accused and therefore, the act of the accused would not amount to adultery and as such it would not be deemed to be a case of illicit intercourse.
9. It may further be mentioned here that D.W. 1 stated about the fact of divoree between complainant and Maltibai. This fact could not be assailed during cross-examination and the customary divorce by mutual consent in permissible in certain castes of Hindu Society. Therefore, reasonable doubt has been granted about continuity of relationship of husband and wife between complainant and Maltibai. Burden lies on the complainant to prove that Maltibai continued to be his wife and was detained against his wishes by the accused. Since reasonable doubt has been created with respect to both the facts, by statement of D.W. 1 and documents D-1, D-2 the accused is, therefore, entitled to benefit of doubt.
10. The revision is, therefore, accepted. Conviction and sentences passed by the Courts below are set aside. Fine is paid be returned to the applicant.