sumption, said to have been adopted by analogy to the statute of 1 Jac. I., chap. 11, sec. 2. Best P. L. and F., p. 191.

It is upon this presumption that the exception to this section is founded, whereby a person does not commit bigamy by marrying again in the life-time of a former husband or wife. In re Pherris Trusts the following question arose in connection with it. A person was last heard of in 1858. Of course in 1865 he will be presumed to be dead. The question is raised in 1869 whether he was dead or alive in 1861. Will the Court presume that he was alive at that time, or will it throw upon the person interested in asserting it the onus of proving that he was alive? It was well settled long before Re Pherres Trusts that the Court will not presume that a person is dead at any time during the period of seven years, although it will presume that he is dead at the expiration of it. In re Pherres Trusts the Court was asked to presume that a person last heard of in 1858 was alive in 1861. Lord Giffard, J., decided that the Court would not so presume, but that the burden of proving it rested with those interested in asserting it. In other words, although there is a presumption that a person who has not been heard of for seven years is dead at the end of that period, that he was alive or dead at any given date during that period is not a matter of presumption but a matter of proof. 5 M. J 161.

The Indian Evidence Act, Section 107, provides for the burden of proof as to continuance of life, and Section 101 as to the burden of proof as to death. The rule of English law, that a period of seven years' absence without tidings is sufficient to raise a presumption of death, is not applicable in the case of a Hindoo. The Hindoo law has a rule of its own, requiring the lapse of twelve years before an absent person, of whom nothing has been heard, can be presumed dead. Saroda Soondri Debi vs. Gobindwani (2 B. L. R. 137). Juma Joy Moozomdar vs. Keshub Lall Ghose (2 B. L. R., 134; 10 W. R., 484).

Where a Mahomedan wife deceitfully contracts marriage during her husband's lifetime, the offence is not taken out of the purview of Sections 494 and 495, from the fact of second marriage being a Nikah.—27th August, 1866, p. 48, vol. II., R. C. C. R., Queen vs. Jadee and Beedhy; also W. R., vol. VI. p. 60.

[Uncos Warrant.
Not bailable.]

[Ct. of S.]

#495. Whoever commits the offence defined in the last Same offence with preceding section, having concealed from concealment of the for- the person with whom the subsequent person with whom sub- marriage is contracted the fact of the former marriage, shall be punished with

mer marriage from the

sequent marriage is contracted.

imprisonment of either description (53) for a term which may extend to ten years, and shall also be liable to fine. Vide notes on preceding section.

By the provisions of Act V of 1865, Parsees committing bigamy are made subject to the penalties prescribed in this and the preceding Section 494. And Section 16, Act III of 1872, provides that "every person married under that Act who during the life-time of his or her wife or husband contracts any other marriage, shall be subject to the penalties provided in this and the preceding Section II.

The prisoner was tried for bigamy before Channell, B., at the Carmarthenshire Summer Assizes, 1869. It was proved that he was married to A in June, 1863, and to B in Nov., 1867. A was proved to be living at the time of the trial. It was not proved that the prisoner had seen A since his separation from her within a month of the first marriage. It was objected by the prisoner's counsel that it ought to be affirmatively proved that he knew A to be living when he married B, as there was no presumption of survivorship. Channell, B., directed the jury that such positive proof was not necessary, as seven years had not elapsed since the first marriage. The prisoner was convicted, and the question reserved was whether the above direction was right.

No counsel appeared on either side.

The Court (Kelly, C. B., Martin, B., Blackburn, J., Lush, J., and Brett, J,) without any comment held the direction to be right, and affirmed the conviction.

N. B.-This case seems to have been reserved on the authority of R. vs. Lumsley (supra vol. IV., page 419); but the latter case is distinguishable, as there the prisoner's first husband had not been heard of for more than seven years, and it was held that the presumption of survivorship was not so strong as the presumption of innocence. R. vs. Jones, 5 M. J. 114.

fraudulent intent with

[Ct. of 8.]

*496. Whoever dishonestly (24) or with a fraudulent Marriage ceremony (25) intention goes through the ceremony gone through with of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description (53) for a term which may extend to seven years, and shall also be liable to fine,

out lawful marriage.

An abuse of the marriage ceremony where no deceit is practised on the woman, and no dishonest or fraudulent intent is proved, is not an offence under this Section 496.

Adultery.

[Ct. of S.]

$497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe (26) to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape (375), is guilty of the offence of adultery, and shall be punished with imprisonment of either description (53) for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

'Adultery, or criminal conversation with a man's wife," says Blackstone, though it is, as a public crime, left to the coercion of the spiritual Courts, yet considered as a civil injury, the law gives satisfaction to the husband for it by action against the adulterer. Black. Com., vol. III, p. 148.

By the law of most Christian countries adultery is the violation of conjugal fidelity by either of the spouses, so that the incontinency of the wife and husband stand on the same foundation. The Romans adopted a different rule; for adultery was defined by them to be sexual intercourse with another man's wife. It was adultery whether the male was married or not; but the sexual connection of a married man with a woman who was not married was not adultery. By the Julian law passed in the time of Augustus, persons convicted of adultery were banished, besides forfeiting a considerable part of their property. A Constitution of Constantine inserted in the Code made adultery a capital offence, but it seems to apply only to males; and at a subsequent period Justinian ordered the erring wife to be confined in a convent after being whipped. In England, during the Commonwealth, adultery in either sex was made a capital offence: but this law was discontinued at the Restoration. A similar law for notorious adultery existed in Scotland under the Act 1563, c. 74; but this statute has expired by long desuetude. In France, a married woman and her paramour, convicted of adultery, are liable to be punished by imprisonment, besides a pecuniary fine in the case of the man.. Mack. R. L. 348. Under the law in India it is to be observed that the wife with whom the adultery is committed is not punishable as an

Sec. 497.

INDIAN PENAL CODE.

445

abettor. (Quare, could she be punished as a principal ?) This makes the provisions of this section somewhat one-sided. By Foreign Department No. 31 P.-certain Regulations for the peace and government of the districts of Hazara, Peshawar, Kohat, Bunnoo, Dera Ismail Khan, and Dera Ghazee Khan, approved by H. E, the G. G. in Council and published as having the force of law under 33 Vic., c. 3, s. 1 at page 5 of The Gazette of India, dated January 2nd, 1872, Regulation 8.

It is laid down that—(8). Any man who has sexual intercourse with a person who is, or whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape; and any married woman who knowingly and by her own consent has sexual intercourse with any man who is not her husband is guilty of the offence of adultery, and shall be punished with imprisonment of either description which may extend to five years, or with fine or with both.

A and B, Mahomedans married under the Mahomedan law, are converted to Christianity. The wife B is first converted, but continues to live with her husband; subsequently the husband A is converted. Subsequent to the conversion of B, A and B still living together as husband and wife, both professing Christianity, B has sexual intercourse with C. Will a conviction hold against C under Section 497? Both Macpherson and Baillie say the marriage becomes dissolved by apostacy of either party, and Grady in his version of Hamilton's Hadya, page 66, says: "If either husband or wife apostatize from the faith, a separation takes place, without divorce, according to Haneefa and Abooyssaf.— Mahomed alleges if the apostacy is on the part of the husband. Apostacy annuls marriage in Haneefa's opinion, and in apostacy separation takes place without any decree of the Magistrate." Cases which might decide this point have been lately tried both at Lucknow and Allahabad :—At the former place, in re Afzul Hossein vs. Hadee Begum, and at the latter Zuburdust Khan vs. Wife. But from certain remarks to be found in the judgment of the High Court, N. W. P., the Courts of Oudh and N. W. P. appear to differ on the most essential point. The point before the Oudh Court was (Hadee Begum's plea,) that her marriage contract was dissolved by reason of her own apostacy, a sufficient answer to a suit brought by her Mahomedan husband for restitution of conjugal rights; i.e. Does the apostacy of a Mahomedan wife dissolve a marriage contract against the express wish of a Mahomedan husband in Dar-oll-Hurb (land of war), for India, it is contended, is not under its present administration, Dar-oll-Islam (land of safety). The Oudh Court held (admitting that apostacy by the husband dissolved the marriage and freed the wife) that apostacy by the wife did not free her if her husband sued for restitution of conjugal rights. They argued that apostacy by the wife, without the

446

INDIAN PENAL CODE.

Sec. 497.

wish of the husband, could not be entertained; in fact, that as regards her husband's volition the apostacy could not exist, and would not be recognized. That a suit for restitution of conjugal rights before the competent Court of the time seemed to them to be the equivalent of the suit before the Cazi. The Oudh Judges, in the absence of distinct precedent, say they fell back on the customs of the people amongst whom they lived. The Oudh Court evidently considered there was an essential difference between apostacy of a man and apostacy of a woman, of the husband or the wife; also between apostacy to a faith in a book, and apostacy to the idol worship Mahomed and his followers renounce. Does such an essential difference exist? The point before the High Court, N. W. P., was-Can a Mahomedan professing Christianity subsequent to his marriage with a Mussulmani according to the Mahomedan law, obtain a decree for dissolution of that marriage under Act IV of 1869, his wife having subsequently to him professed Christianity, and they having under their new faith lived together as man and wife, or whether the wife's contention is sound, that her marriage was cancelled by her husband's apostacy? They held the apostacy of the husband dissolved the marriage tie. This the Oudh Courts admit, but the point before the Oudh Court was not before the High Court, N. W. P., nevertheless from comments made by the High Court, N. W. P., on the Oudh decision, they evidently did not agree with the finding come to by the latter Court on the point before it.

The law allows a person the right to cease to be a Hindoo or Mahomedan in the fullest sense of the word, and to become a Christian, and to claim for himself and his descendants all the rights and obligations of a British subject. Hogg. vs. Greenway, &c., (2 Hyde's Report's, 3). With reference to Hindoos; upon the conversion of a Hindoo to Christianity, the Hindoo law ceases to have any continuing obligatory force upon the convert. He may renounce the old law by which he was bound, as he has renounced the old religion, or if he thinks fit he may abide by the old law, notwithstanding he has renounced the old religion. The profession of Christianity releases the convert from the trammels of Hindoo law, but it does not of necessity involve any changes of the rights or relations of the converts in matters with which Christianity has no concern. The convert, though not bound as to rights and interests in, and his powers over, property, either by the Hindoo or any positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. Charlotte Abraham vs. Francis Abraham (1 W. R., R. C., 1).

A wife may be deserted on the ground of adultery (see Shamachurus Vyavastha Darpana), which is regarded as a criminal offence, but Nareda