Patna High Court
Fagu Tanti vs Chotelal Tanti And Ors. on 24 August, 1925
Equivalent citations: 96IND. CAS.115, AIR 1926 PATNA 346
JUDGMENT Macpherson, J.
1. The petitioner in this case asks that a further inquiry should be ordered into a complaint under Sections 494 and 498 of the Indian Penal Code against his wife Badia, Chotelal, a man to whom she has admittedly been given in sagai, and others, which he made on the 16th March, before the Sub-Divisional Magistrate, Monghyr, and which was dismissed by the Magistrate, an application for further inquiry into the complaint being also dismissed by the Sessions Judge.
2. It is admitted that Badia was married to the petitioner some six years ago. In the middle of February, 1925, the petitioner applied to the District Magistrate under Section 552 of the Cr.P.C. for the restoration of his wife to him from the custody of Chotelal. The Police inquired into the matter and reported that "her father made sagai of Badia with Chotelal" because petitioner had not taken care of her for six years. The Police also reported that her father had stated that there is a custom in the Tanti caste to which they belong that if a husband does not take care of his wife, she is given in sagai to another person.
3. The Magistrate on receiving the petitioner's complaint sent for that Police report and on a consideration of it dismissed the complaint. The Sessions Judge declined to interfere on the ground that he was not prepared to hold that the Sub-Divisional Magistrate had exercised his discretion wrongly.
4. In my opinion a further inquiry must be ordered. In the first place, it is clear that there is nothing except the statement of the father of Badia to show that there is in the Tanti caste a custom of sagai of the nature alleged. It is, of course, well known that sagai in the form of re-marriage of widows is the normal condition in all except the five or six highest castes of Hindus in Bihar which as the Census figures show have the highest proportion of widows, and a few aspiring sub-castes. But a custom of sagai, while the first husband is still alive is, even assuming the custom to be a valid defence under Section 494, something which would require strict proof in respect of the particular caste in the particular area, and in respect of the conditions in which the custom operates. No doubt in the case of Jukni v. Queen-Empress 19 C. 627 : 9 Ind. Dec. (N.S.) 860 the High Court upheld such a custom as an answer to a charge under Section 494; but it is clear that in that case it was proved that the first husband had relinquished the accused and that the custom of the caste sanctioned the marriage during the lifetime of the husband of the relinquished wife. The actions of the petitioner would go to show that he had not, at least willingly, relinquished his wife. Again it is remarkable that in the Police report or even in Mr. Niamatullah's argument for the opposite parly, there is no mention of a caste panchayat sanctioning the marriage of Badia and Chotelal: ordinarily the operation of such a custom would be contingent on the sanction of a caste panchayat.
5. Accordingly it is clear that it cannot be said on the present materials that no offence has been committed under Section 494 or Section 498. It is therefore directed that further enquiry be made into this case by the Sub-Divisional Magistrate or any other Magistrate of the First Class to which he may make it over for disposal.