Enticing or taking away or detaining with Criminal intent a married woman (Section 498 of IPC)
Section 498 punishes a person who entices or takes away or detains a married woman with a criminal intent. Section 498 deals with the offence of deprivation of the husband of his custody over his wife with the object of having illicit relation with her.
Only a married woman is the subject-matter of this offence. There must be some influence, physical or moral, brought to bear by the accused to induce the wife to leave her husband in order that her leaving may amount to taking away by the accused within the meaning of Section 498. Section 498 is intended to protect the husband and is not intended for the benefit of the wife.
The ingredients of the offence under Section 498 are:
i) The woman was married;
ii) The accused knew or had reason to believe that she was the wife of another man;
iii) She was at the commission of the offence living under the care of her husband or someone else on his behalf;
iv) The accused took or enticed her away from her husband or that other person or concealed or detained her;
v) His intention in doing so was that she might have illicit intercourse with him somehow.
No Court shall take cognizance of the offence under Section 498 unless a complaint made by the husband of the woman, or, in his absence by some person who had care of such woman, or some other person mentioned in Section 199 of the CrPC.
The offence under Section 498 is non-cognizable and a warrant should ordinarily issue. It is bailable as well as compoundable and is triable by any Magistrate.
Taking does not mean taking by force. It implies use of physical or moral influence by the accused to induce the wife to leave her husband. There must be some influence operating on the woman or cooperating with her inclination at the time the final step is taken by the woman or causing separation from her husband. The fact that the woman accompanied the accused of her own free will does not diminish the criminality of the act.
Taking a woman with the consent of her husband or of the person who has the care of her is not taking under Section 498 with a woman who willingly accompanies the accused; this fact will not diminish the criminality of the accused if other ingredients of the offence are proved.
The word ‘detains’ means ‘keeps back’ 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 have caused the willingness of the woman, or may have encouraged, or cooperated with her intended inclination to leave her husband.
The word ‘detention’ is ejusdem generis with enticement and concealment. It does not imply that the 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.
A person is said to have enticed a woman when he persuades her to leave her husband’s house. Thus the act of enticement involves some active persuasion or use of moral force by accused so that woman may leave her husband or the person having the charge of her care of her own.
For an offence under Section 498 taking or enticing away of wife is not necessary. If the accused has concealed or detained her with intention that she may have illicit intercourse with another person, he may be guilty under Section 498.
If the intention of illicit intercourse is not proved, even the facts of being the accused knew that the woman is the wife of another person and the offender has taken or detained her have been proved; it would not sustain the charge under Section 498.
It would be material to compare and contrast the provisions of Section 498 with those of Section 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.
For an offence under Section 366 there must be kidnapping or abduction as defined by the Code; while under Section 498 there need be no compulsion or deceit but the woman must be a married woman. Mere elopement with an adult unmarried woman is no offence.
Under Section 366 the intention of the person kidnapping or abducting is to compel the woman afterwards to marry any person against her will, or to force or seduce her afterwards to illicit intercourse.
Section 498 applies to cases where the object of the taking or enticing is that the woman may have illicit intercourse with some other person, even though, as generally happens, she is quite aware of the purpose for which she is quitting her husband, and is an assenting party to it.
An offence punishable under Section 498 is a minor offence as compared with an offence punishable under Section 366.
The expression “any such woman” in the latter part of Section 498 refers to a woman “who is and whom he (the accused) knows or has reason to believe to be the wife of any other man” mentioned in the first part of the section and not to a woman who had been taken or enticed away from her husband”.