ÆäÀÌÁö À̹ÌÁö
PDF
ePub

497. Whoever has sexual intercourse1 with a person who is Adultery. and whom he knows or has reason to believe 2 to be the wife of another man 3, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both 7. In such case the wife shall not be punishable as an abettor.

away, or

with

498. Whoever takes or entices away any woman who is Enticing, and whom he knows or has reason to believe to be the taking wife of any other man, from that man, or from any person detaining having the care of her on behalf of that man, with intent criminal that she may have illicit intercourse with any person, or conceals, or detains 10 with that intent any such woman, shall woman.

This may be inferred from acts of guilty familiarity, or from the fact that the parties sought for and created opportunities. It may be proved directly by the evidence of the wife, who may be called as a witness against the adulterer; Mayne, P. C. 495.

Sec. 26. 5 Bom. H. C., Cr. Ca. 17. 3 Where a prisoner accused of adultery sets up a nātrā contracted with the alleged adulteress, in accordance with his caste-custom, the question for the Court is, whether or not he honestly believed, at the time of contracting the nātrā, that the woman was another man's wife, 5 Bom. H. C., Cr. Ca. 17.

• Sec. 90.

5 Before the time the act was committed. There must be a corrupt intention by acquiescence to assist in the commission of the offence. (Bittleston J. cited in Mayne, P. C. 406.) Mere negligence, inattention, dulness of apprehension, indifference, will not suffice, Allen v. Allen, 30 L. J. Mat. 2.

• Sec. 375

7

The death of the husband does not necessarily put an end to a prosecution for an offence under this section, 4 Mad. H. C. Rulings, lv. That a second prosecution cannot be maintained against the same man for adultery with the same woman, she not having in the meantime returned to her husband's protection, is main

tained by Mr. Mayne, citing Gipps
v. Gipps, 33 L. J. Mat. 169. That
a Hindú contracting a nātrā marriage
with a woman whom he knows to be
another man's wife, and having sexual
intercourse with her, without that
other's consent or connivance, is guilty
of adultery, see 2 Bom. H. C. 124.

8

A Canarese woman cohabiting with a man under the Alyasantána law may terminate the relation at pleasure, and is not a wife' within the meaning of this section, 6 Mad. 379.

In a charge under this section, proof that the woman and a man, other than the accused, were living together has been held sufficient to throw upon the accused the burden of proving that they are not man and wife, 8 Ben. Appx. 63. But this seems wrong. Reports arising from mere cohabitation ought not to be sufficient evidence in such cases (see Act I of 1872, sec. 50). As to the proof of marriage, see 4 Suth. Cr. 31; ibid. Cr. Let. 10. In 5 Cal. 366 and 5 All. 233 the statements of the husband and wife that they were married were held insufficient. But see 9 Mad. 9.

The taking away of a woman from a house belonging to her husband, or hired by him for her occupa tion and at his expense, is a taking away from him, even though he be temporarily absent, 5 Suth. Cr. 50.

10 The words' conceals or detains '

intent

married

be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both 1.

apply to the enticing or inducing a wife to withhold or conceal herself from her husband, and assisting her to do so, as well as to physical restraint or prevention of her will or action. Depriving the husband of his proper control over his wife, for the purpose of illicit intercourse, is the gist of the offence, and a detention occasioning such deprivation may be brought about simply by the influence of allurements and blandish

ments, 4 Mad. H. C. 20, 21.

This section and sec. 497 were intended for the protection of husbands, who alone can institute prosecutions under them, and who can compound offences under them, Cr. P. C. sec. 345. As to sec. 498, it has been ruled that, though the advances and solicitation came wholly from the wife, there may be a 'taking' within the meaning of the section, 2 Mad. H. C. 331.

CHAPTER XXI.

OF DEFAMATION 1.

tion.

499. Whoever, by words either spoken or intended to be Defamaread, or by signs or by visible representations, makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1.-It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

1 No Court can take cognizance of an offence falling under this chapter, except upon a complaint made by some person aggrieved by such offence, Cr. P. C. sec. 198.

As to forgery for the purpose of harming reputation, see sec. 469,

supra.

The defamatory words must be communicated to some one other than

the person using them, and other
than the person to whom they are
used, 10 Suth. 184: 6 N. W. P. 38.
The sending of a newspaper contain-
ing defamatory matter by post from
Calcutta, where it is published, to a
subscriber at Allahabad, is a publica-
tion at Allahabad, All. 342, 345 ;
and see 5 Suth. Cr. 44, and the note
to sec. 294 A supra.

[ocr errors]
[graphic]

Imputa

Illustrations.

(a) A says 'Z is an honest man; he never stole B's watch;' intending to cause it to be believed that Z did steal B's watch. This is defamation, unless it fall within one of the Exceptions.

(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation, unless it fall within one of the Exceptions.

(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's watch. This is defamation, unless it fall within one of the Exceptions.

First Exception.-It is not defamation to impute anything tion which which is true concerning any person, if it be for the public

public good

be made or

2

requires to good that the imputation should be made or published. published. Whether or not it is for the public good is a question of fact1. Public Second Exception.-It is not defamation to express in good conduct of faith any opinion whatever respecting the conduct of a public servant 3 in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no farther.

public servants.

Conduct touching public question.

Publication of

reports of proceedings of Courts.

Third Exception.-It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no farther.

Illustration.

It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such a meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

Fourth Exception.-It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings ".

Explanation.-A Justice of the Peace or other officer holding an enquiry in open court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

1

3 All. 664. This exception is useless, as it is included in the ninth. 2 Sec. 52: 4 Bom. 298.

3 Sec. 21.

1 Sec. 12.

5 Sec. 20.

But a defamatory statement is not privileged merely because it is used in a petition preferred in a judicial proceeding, 3 All. 815.

1

a case de

conduct of persons

Fifth Exception.-It is not defamation to express in good Merits of faith any opinion whatever respecting the merits of any case, cided in civil or criminal, which has been decided by a Court of Justice 2, Court; or or respecting the conduct of any person as a party, witness, or agent, in any such case, or respecting the character of such concerned. person, as far as his character appears in that conduct, and no farther.

Illustrations.

(a) A says 'I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest.' A is within this Exception if he says this in good faith; inasmuch as the opinion which he expresses respects Z's character as it appears in Z's conduct as a witness, and no farther.

(b) But if A says-'I do not believe what Z asserted at that trial, because I know him to be a man without veracity;'-A is not within this Exception, inasmuch as the opinion which he expresses of Z's character is an opinion not founded on Z's conduct as a witness.

Sixth Exception. It is not defamation to express in good Merits of public perfaith any opinion respecting the merits of any performance formance. which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no farther.

Explanation.-A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Illustrations.

(a) A person who publishes a book, submits that book to the judgment of the public.

(b) A person who makes a speech in public, submits that speech to the judgment of the public.

(e) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.

(d) A says of a book published by Z-Z's book is foolish, Z must be a weak man. Z's book is indecent, Z must be a man of impure mind.' A is within this Exception if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z's character only so far as it appears in Z's book, and no farther.

(e) But if A says 'I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine;' A is not within this Exception, inasmuch as the opinion which he expresses of Z's character is an opinion not founded on Z's book.

[blocks in formation]
« ÀÌÀü°è¼Ó »