JUDGMENT 1. - This revision petition of accused Jamna is directed against the judgement of learned Additional Sessions Judge, Ajmer, dated November 15, 1971 by which he has upheld his conviction for an offence under section 420, Indian Penal Code, but reduced the sentence to six month's rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine, the petitioner has been ordered to undergo further rigorous imprisonment for the three months. 2. Smt. Choti was the wife of petitioner Jamna. It is alleged that there was meeting at the house of one Ram Chandra, on March 31, 1966 at Dilwara, where Smt. Chhoti's marriage with Jamna was dissolved according to custom and she was given in 'Nata" marriage to Sua P.W.3, son of Kalyan P.W.1 and a sum of Rs. 3700/- was paid to petitioner Jamna as evidenced by the document which has been placed on the record as "kagli" Ex. P.2. It is alleged that Smt. Chhoti thereafter went to the house of Sua and lived with him as his wife. Jamna, however, made an application on April 4, 1966, for her recovery from the house of Sua, with the allegation that she had been wrongfully confined in Sua's house against her wishes and it was necessary to release her from his custody. The learned Sub-Divisional Magistrate made order Ex. P.6 on April 4, 1966 for the recovery of Smt. Choti from the house of Sua, and she was recovered on April 9, 1966, at the instance of accused Jamna, in pursuance of a warrant issued under section 100, Criminal Procedure Code Sua's father Kalyan P.W.1 thereupon lodged first information report Ex. P.1 with the police on April 11, 1966 at police station Nasirbad, for the alleged commission of an offence under section 420, Indian Penal Code. The police registered a case and challaned Jamna and Smt. Chhoti. The learned trial Magistrate convicted Jamna of the offence under section 420, Indian Penal Code and sentenced him to rigorous imprisonment for one year and a fine of Rs. 2000/- with the direction that, in case of default of payment of fine, he would undergo further rigorous imprisonment for a period of six months. As has been stated, that judgement has been upheld by the Additional Sessions Judge, Ajmer, except that the sentence has been reduced to the extent mentioned. 2000/- with the direction that, in case of default of payment of fine, he would undergo further rigorous imprisonment for a period of six months. As has been stated, that judgement has been upheld by the Additional Sessions Judge, Ajmer, except that the sentence has been reduced to the extent mentioned. It may be mentioned that Smt. Chhoti jumped the bail and has not been tried so far. 3. It has been argued by the learned counsel for the petitioner that there is nothing in the statement of Kalyan P.W.4 to show that accused Jamna approached him for the marriage of his wife Smt. Chhoti with Kalyan's son Sua there was no justification for holding that Smt. Chhoti's marriage with accused Jamna was dissolved at Jamna's instance, or with his consent. The argument is futile because a reading of the entire statement of Kalyan P.W. 1 shows that he has clearly stated that accused Jamna told him that Smt. Chhoti was his wife and that he wanted to give her away in "Nata" marriage because he had two wives. There is therefore, no justification for the first argument which has been advanced by the learned counsel for the petitioner. 4. It has next been argued that there is no evidence on the record to show that accused Jamna had the criminal intention referred to in section 415 read with 420 Indian Penal Code. It has been argued in this connection, with reference to State of Kerala v. A. Pareed Pillai & another, AIR 1973 SC 326 , that the dishonest intention for the purpose of proving the offence of cheating should be shown to have been in existence at the time of the commission of the offence. 5. There can be no doubt that criminal intention is an essential ingredient of an offence of cheating, and has to be proved before an accused can be convicted of an offence under section 420 I.P.C. Its importance was, I find, appreciated and considered in the impugned judgement of the learned Additional Sessions Judge & he has clearly recorded the finding that the criminal intention on the part of the accused to commit the offence of cheating had been fully proved through the record, and I agree with the view taken by the learned Judge. There are a number of facts and circumstances which go to prove, beyond a shadow of doubt, that accused Jamna had the intention of committing the offence of cheating, and it will be sufficient to make a mention of the important facts and circumstances. It is not in controversy that Smt. Chhoti was the wife of Petitioner Jamna. There is satisfactory evidence on the record to prove that Jamna expressed the desire of divorcing her and giving her away in "Nata" marriage to Sua P.W.3. As it has been stated, Kalyan P.W.1 has stated that Jamna gave the explanation that he wanted to do so because he had two wives. That statement has been corroborated by the statement of Manna Lal P.W.2. Then, there is parol and documentary evidence (in the form of document Ex. P.2) to show that Jamna took a sum of Rs. 3700/- from Kalyan P.W.1 in that connection. As has been stated, while accused Jamna allowed Smt. Chhoti to go and live with Sua P.W.3, after the receipt of Rs. 3700/- he filed an application in the court of Sub Divisional Magistrate four days later, on April 4, 1966 for the recovery of Smt. Chhoti from Sua's house under section 100 Criminal Procedure Code with the obviously false allegation that she had been kept there in wrongful confinement. She was recovered from Sua's house on April 9, 1966, at the instance of accused Jamna. It is not the case of Jamna that he returned Rs. 3700/- to Kalyan or offered to do so. The entire sequence of events from March 31, 1966 to April 9, 1966 thus goes to show that there was justification for the view taken by the two courts below that accused Jamna had the criminal intention referred to in section 415 Indian Penal Code and the argument to the contrary is quite untenable. 6. It has then been argued that as Smt. Chhoti was the wife of accused Jamna, she could not be given in away in "Nata" marriage without a divorce in accordance with the provisions of the Hindu Marriage Act, 1955. 6. It has then been argued that as Smt. Chhoti was the wife of accused Jamna, she could not be given in away in "Nata" marriage without a divorce in accordance with the provisions of the Hindu Marriage Act, 1955. This argument has been advanced for the purpose of contending further that in the absence of any such a divorce, Smt. Chhoti continued to be the wife of accused Jamna and could well be recovered in pursuance of warrant under section 100 Criminal Procedure Code because Sua had no authority to retain her as his wife in his house. Reference in this connection has been made to the decisions in Emperor v. Jani Hira, 15 Indian Cases 798 , Keshav Hargovan v. Bai Chandi, ILR 39 Bom 538 and Ramjilal v. State of Haryana, (1973) 75 PLR 165 . It has also been argued that there could be no valid customary divorce of the nature referred to by the witnesses of the prosecution because it would be opposed to public morality if a custom for the sale of one's wife to another were to be recognised. 7. Now it has been expressly provided in sub-section (2) of section 29 of the Hindu Marriage Act, 1955 that nothing contained in that Act shall be deemed to affect any right recognised, inter alia, by custom to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act. The contention that such a custom existed in the caste to which to parties belonged, was not challenged during the course of the trial and none of the prosecution witnesses was cross examined in regard to it. The matter, it appears, was not even urged for the consideration of the trial court. It was taken up in the appellate Court only to the extent that it was argued there that at the obtaining of money by accused Jamna for giving Smt. Chhoti in "Nata" to Sua was forbidden by law and as such Kalyan had no remedy for the recovery of the money given by him by a civil action, and he could not therefore be allowed to proceed against the accused in a criminal court. Reference in that connection was made to Jani Hira's case (2) referred to above. Reference in that connection was made to Jani Hira's case (2) referred to above. It would thus appear that questions regarding the existence of a custom, the dissolution of Smt.Chhoti' marriage with accused Jamna in accordance with that custom, and her "Nata" marriage with Sua were not raised for the consideration of the court of appeal. In fact, I find that the question of the validity of the custom has not been raised even in the present revision petition. There is therefore, on real justification for requiring this court to examine the matter in revision. 8. I have, however, examined the argument and I find that the view taken in Jani Hira's case (2) that a party should not be allowed to prosecute an accused on a charge of cheating when he would not be entitled to obtain from a civil court any relief for breach of contract because it was clearly void for immorality, has been considered and has not been approved in Emperor v. Raghu Nath, AIR 1941 Ondh 3 , Public Prosecutor v. K.Bhimeswara Rao, AIR 1948 Mad 258 and Rama Shanker Shukla v. Rikhab Kumar Jain, 1952 Cr LJ 747 . In fact, while considering the matter in Raghu Nath's case (5) their Lordships have stated that the suggestion that a criminal prosecution may fail if it is based upon a contract which couldn't be enforced in a civil court, has been expressly repelled in Meera & another v. Emperor, AIR 1917 LB 105 and Yaqoob v. Emperor, AIR 1933 Rangoon 199 and they had no reason to dissent from the later view. I am in respectful agreement with that view. I have gone through the discussions in Emperor v. Jani Hira (15 Indian Cases 798) , Keshav Hargovan v. Bai Chand (ILR 39 Bom. 538) and Ramji Lal v. State of Haryana ((1973) 73 PLR 165) but, if I may say with respect, i do not find it possible to subscribe to it. 9. Mr. Bhargava has made a reference to Uji v. Hathi Lalu, 7 Bom. HCR 133 , Manna Lal v. State of Rajasthan, 1966 RLW 460 and Kishan Lal v. Mst. 538) and Ramji Lal v. State of Haryana ((1973) 73 PLR 165) but, if I may say with respect, i do not find it possible to subscribe to it. 9. Mr. Bhargava has made a reference to Uji v. Hathi Lalu, 7 Bom. HCR 133 , Manna Lal v. State of Rajasthan, 1966 RLW 460 and Kishan Lal v. Mst. Prabhu, 1962 RLW 568 also In Uji's case (10), the plaintiff had sued for restitution of conjugal right & it was held that a custom which authorises a woman to contract "Natra" Marriage without a divorce, on payment of certain sum to the caste was an immoral custom. The distinction between that case and the present case is that in Uji's case (10) there was no evidence of divorce and there was no evidence that the earlier marriage had been dissolved on payment of money to the husband & with his consent As against this, there is evidence in the present case that the accused willingly divorced his wife in accordance with the custom of his caste and received the money in accordance with that custom. So also, in Manna Lal's case (11) there was no evidence that the husband had agreed to the divorce of his wife On the other hand, the evidence went to show that attempt were made to pay the "Jhagra" money to the husband but he was not prepared to accept it. This showed that there was no completed divorce with his consent. That was also therefore a different case. The facts in Kishan Lal v. Mst. Prabhu , 1962 RLW 568 were also different for there the custom which was set up was to the effect that a marriage tie may be dissolved by a mere fiat of the caste Panchayat, without more, i.e. without regard to the consent of the parties. In the present case, on the other hand, I find that both Kalyan P.W. 1 and Sua P.W.3 have deposed about the divorce of Smt. Chhoti by accused Jamna in accordance with the customary right to do so, and they were not cross examined in that respect. Then there are the statement of Kalyan P.W. 1. Manna Lal P.W.2 Mithu Lal P.W.4 and Rang Lal P.W.7 as well as the documentary evidence in the form of "kagli" Ex. Then there are the statement of Kalyan P.W. 1. Manna Lal P.W.2 Mithu Lal P.W.4 and Rang Lal P.W.7 as well as the documentary evidence in the form of "kagli" Ex. P.2 to prove that accused Jamna had wilfully given his consent to the divorce and to the "Nata" marriage with Sua according to the custom of the caste. I am therefore, quite unable to think that there is any justification for the argument that the custom was opposed to public morality. 10. It would thus, appear that there is no force in the arguments which have been advanced by the learned counsel for the petitioner. The accused is on bail and shall surrender to serve out the sentence. The Additional Sessions Judge, Ajmer, shall carry out this judgement and report compliance. Leave to appeal is prayed for, but is refused. *******