JUDGMENT P.L. Bhargava, J. - This is an application in revision by Tekram Naithani a resident of village Karakote, in the district of Garhwal, who has been convicted of offences punishable under Sections 497 and 498 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year under each of those Sections, the sentences to run concurrently. Against his conviction and the sentences imposed upon him. he had preferred an appeal to the Sessions Judge of Kumaun, but that appeal was dismissed He has now come up to this Court in revision. 2. The charges framed against the applicant Tekram, were firstly, that on June 22, 1949, he had had sexual intercourse with Kamla, who was and whom he knew or had reason to believe to be, the wife of Sitaram, without the latter's consent or connivance, such intercourse not amounting to rape; and secondly, that, on the same date, he enticed away Kamla aforesaid with the intention of having sexual intercourse with her. 3. It has been found by the courts below that in village Karakote there lives an old man, named Shankar Datta Jayal. He has a son, Sitaram, who is employed in Delhi and lives there most of the time. Sitaram's wife, Kamla, lived with her father-in law. On the 22nd June, 1949 in the afternoon. Kamla was asked to bring water from a water course, She went out but did not return. A search for her revealed that Vishalmani had seen Tekram having sexual intercourse with Kamla near the water course and that both were seen by Bachi leaving the village together, Tekram took Kamla to the Tehri State where he committed adultery with her on several occasions. Later on, they were noticed by the police, who were able to arrest Kamla but Tek ram managed to escape. Tekram surrendered in court when this case was started against him. 4. In this revision, it has been contended on behalf of the applicant, that one of the main ingredients of the offences with which the applicant was charged, viz., that Kamla was and Tekaram knew or had reason to believe her to be the Wife of Sitaram, was not proved according to law and that in India where the marriage are usually not registered such proof of marriage has always been insisted upon in cases of this nature. In support of his contention, learned counsel for the applicant has relied upon a decision of this Court in Emperor v. Buddhu ILR 42 All. 41 where the contentions that- (1) "the conviction u/s 498 of the Indian Penal Code cannot be sustained inasmuch as it has not been strictly proved that marriage and all necessary rites were duly celebrated between the complainant and the woman in question and (2) "the mere statement of the husband that he is married to the woman is not sufficient to sustain a conviction. were upheld by Knox J. and "evidence of a better kind" was required. 5. Learned counsel has also relied upon a Patna case in Ganga Patra Vs. Emperor, AIR 1928 Patna 481 where it was held.- In a prosecution u/s 497 the , question of marriage must be proved strictly, and any " inference, tacit or otherwise, e. g. a tacit admission on the part of the accused that the woman was the wife of the complainant will not avail the prosecution if they fail to prove strictly the marriage between the complainant and the woman whose chastity has been violated. 6. On the other hand, the learned counsel holding the brief of the State Counsel, invited my attention to the case of Nazir Khan v. King Emperor 11 A.L.J. 994 That case was decided by Ryves J., before whom three earlier decisions of this Court: Emperor v. Kallu ILR 5 Allah. 233; Queen Empress v. Dal Singh ILR 20 All 166 and Empress v. Suntok Singh 1898 A.W.N. 186 and a full bench decision of the Calcutta High Court; Empress v. Pitambar Singh ILR 5 Cal. 566 were cited. The learned Judge interpreted the law as laid down in these cases to be that " the fact and the legality of the marriage is a material element in a case u/s 498 and must be proved as strictly as any other material fact., as far instance the enticing away of a Woman with the intention mentioned in this section." 7. The learned Judge further observed : I do not think these rulings lay down that the fact of the marriage can be proved only in some particular way. 8. Belying upon a Madras case, in Q. E. v. Subbaravan ILR 9 Mid. The learned Judge further observed : I do not think these rulings lay down that the fact of the marriage can be proved only in some particular way. 8. Belying upon a Madras case, in Q. E. v. Subbaravan ILR 9 Mid. 9 the learned Judge pointed out-even a marriage in England may be proved by any person who was actually present and saw the ceremony performed, it is not necessary to prove its registration or the license or publication of the banns" 9. There is a decision of the Avadh Chief Court in Raghupat Singh v. King Emperor 1927 A.L.R. Oad 141 where it was held that- in a prosecution under S. 497 or Section 498 of the Indian Penal Code it must be proved to the satisfaction of the Court that there is in existence a legal marriage before conviction can take place. 10. Learned counsel for the applicant has pointed out that Nazir Khan's case is distinguishable on the ground that in that case the parties were Muslims and there Was the un-rebutted evidence of the woman, the husband and their parents describing the marriage in detail; while in the present case the parties are Brahmans and a special form of marriage was alleged, and it was necessary to prove not only the marriage, but also that the special form of marriage was recognized in the locality or among the people of the class to which the parties 11. In order to make out an offence either u/s 497 or Section 498 of the Indian Penal Code, it must be proved that the accused had sexual intercourse with a woman " who is and whom he knows or has reason to believe to be the wife of another man." THE applicant denied having committed any such act. Consequently the prosecution had to prove not only that the applicant had sexual intercourse with Kamla but also that she was and the applicant knew or had reason to believe her to be the wife of Sitaram. The fact that Kamla was the wife of Sitaram was a " material element" and. if I may repeat the words of Ryves J. in Nazir Khan's case, it must have been 'proved as strictly as any other material fact". The fact that Kamla was the wife of Sitaram was a " material element" and. if I may repeat the words of Ryves J. in Nazir Khan's case, it must have been 'proved as strictly as any other material fact". To establish the fact that a woman is the wife of a particular person, it must be proved that she has been married to that person in any one of the recognized forms of marriage or in any special form of marriage recognized by law or custom which governs the parties to the marriage a bare statement or expression of opinion that she is the wife of that person or that that person is the husband of the woman is not sufficient. 12. The courts below, however, did not apply their minds to the question of marriage and they have recorded no finding on that point-they seem to have assumed that Kamla was the wife of Sitaram I had. therefore, to look into the evidence myself. The complainant, Shankar Datt, the father in law of Kamla, has stated that Kamla is the wife of his son and was married to him in the village about four years before the occurrence. "When this statement of his was challenged in cross-examination, he alleged that the marriage had taken place in the "Taka-ka-biha " form of marriage, which was in vogue amongst them; that he had paid Rs. 800/-; and that Bishalmani was also married in the same form of marriage. Bishalmani, however, stated that he was married in "Dan-ka-biha" form of marriage, which was different from "Taka-ka-biha". 13. Kamla has stated that her husband was in Delhi and Shankar Datt was her father-in-law. She did not name her husband and Shankar Datt has several sons Bishalmani has stated that Kamla is the "legally wedded wife of Sitaram "; but he does not say in what form the marriage took place. Bachi Ram has also stated that Kamla is the wife of Sita Ram and that several marriages of the form in present case have taken place and are in vogue amongst us " without saying what form of marriage had taken place in this case-Admittedly, the marriage between Kamla and Sitaram did not take place in anyone of the recognized forms of marriage. The statement of Shankar Datt, when considered along with that of Bishalmani, does not establish that Kamla and Sitaram were married in "Taka-kabiha" form of marriage. Shankar Datt would have us believe that his son, Sitaram, and Bishalmani were married in the same form of marriage. Bishalmani, however, says that he was married in "Dan-ka-biha" form of marriage which is different from Taka-ka-biha. The evidence of other witnesses is no better than an opinion, which is not sufficient to prove marriage in prosecutions under Sections 497 and 498 of the Indian Penal Code (vide Section 50 of the Evidence Act). 14. Learned counsel for the applicant has pointed out that even if we were to assume that the Taka-ka-biha form of marriage was recognized in the locality or among the people of the class to which the parties belong, there are certain essential ceremonies connected with this form of marriage, which were not proved in this case Shankar Datt had only stated that he paid Rs. 800/. evidently to the father or guardian of the girl. Be that as it may as already stated, it has not been proved that Kamla was married to Sitaram in the "Taka-ka-biha" form of marriage. It is not alleged that she was married in any other special form of marriage. 15. It must, therefore, be held that in this case the marriage between Kamla and Sitaram has not been proved according to law ; and in view of that finding the conviction of the applicant cannot be sustained. 16. The application is, therefore, allowed and the conviction of and the sentences imposed upon the applicant are set aside, he is acquitted. He is on bail and need not surrender. The bail bonds executed by him are discharged.