JUDGMENT 1. The Petitioner was convicted by a Deputy Magistrate at Dinajpur on charges under secs. 498 and 497, I. P. C., and sentenced to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 50. The conviction and sentence were affirmed on appeal by the Sessions Judge. It has been found concurrently by both the lower Courts that the complainant Tafir Mahomed married Ujjalbi in the nika form in Kartik 1308=October and November 1901 ; that she left the complainant shortly after, remained for a short time at her father's house, and then leaving it adopted the life of a prostitute and was living with the Petitioner. 2. Before the Deputy Magistrate as well as in the appeal before the Sessions Judge, a question was raised as to the legality of the marriage of the complainant with Ujjalbi. The parties are Mahomedans, and it was alleged that Ujjalbi's uterine sister Mafizan was at the time of Ujjalbi's marriage with the complainant, his wife and a marriage with a wife's sister is invalid under the Mahomedan Law ; and also that Ujjalbi's first husband Audhoru died in the previous month of Sravan and her marriage with the complainant in Kartik was within the period of iddat, i.e., four months and ten days of the death of Audhoru and that therefore on this ground also the marriage of hers with the complainant was not valid under the Mahomedan Law. 3. The Courts below left the question of the validity of the marriage undecided apparently under the impression that proof of a de facto marriage was sufficient for a conviction under secs. 497 and 498, I. P. C. If, however, the parties could not, according to the law by which they are governed, be united as husband and wife, and if the issues of an union between them be illegitimate, the mere performance of the prescribed ceremonies of nika marriage and the recognition of such marriage by the community would not give the status of husband and wife to the persons unlawfully united. The question of the validity of the marriage between the complainant and Ujjalbi thus becomes vital to the commission of an offence relating to marriage under Chapter XX of the Penal Code. 4. According to the Mahomedan Law a man cannot marry his wife's sister during the lifetime of that wife. The question of the validity of the marriage between the complainant and Ujjalbi thus becomes vital to the commission of an offence relating to marriage under Chapter XX of the Penal Code. 4. According to the Mahomedan Law a man cannot marry his wife's sister during the lifetime of that wife. Chand Mahammod, the father of Ujjalbi, states that Mafizan is his daughter and Ujjalb herself and Khoshar Shaikh supports him. Mafizan has not been produced to contradict them. The complainant in cross-examination says that Mafizan and Ujjalbi are cousins, not sisters, but he is not corroborated by any other witness. Under the circumstances we cannot but come to the conclusion that Ujjalbi and Mafizan are uterine sisters and that Ujjalbi's nika marriage with the complainant is not valid. 5. Then there is sufficient and reliable evidence on the record that Ujjalbi's first husband Audhoru died in July 1901. The death register, produced and proved by the witness Kali Kant Chakravarti, shows the date of Audhoru's death to be 8th Sravan 1308. Chand Mahammod, Ujjalbi and Khoshar Shaikh affirm that the event took place in Sravan 1308. The witnesses for the prosecution make vague statements as to the time of Audhoru's death a year or a year and a half before April 1902 when they were examined in this case. The Mahomedan Law is clear that if a man marries a widow within four months and ten days of her husband's death, the connection is unlawful. 6. We think that the performance of the nika ceremony between the complainant and Ujjalbi did not effect a valid and lawful union between them and that consequently no offence under sec. 497 or sec. 498, Penal Code, could be committed by the accused. The rule must, therefore, be made absolute and the conviction and sentence set aside. We direct that the Petitioner be discharged and the fine, if paid, be refunded.