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Present: De Sampayo J.
BEX v. ASIAUMMA.
66—D. G. (Grim.) Batticaloa, 2,699 B.Marital compulsion—When wife is not responsible, for her acts.
Marital compulsion is not specifically stated in our Penal Codeas an exception to criminal liabilityon the partofa wife, butthe
principleofmarital compulsion isnot whollyabsent. Under-the
Englishlawthe presumption, almostamountingtoa conclusionof
law, isthatthe wife is not a freeagent, andis,therefore, exempt
from liability; whereas under our law the wife, like .any other personi- is responsible for her acts, and can only free herself by proof thatshe was merely acting under the orders of her husband, and had noknowledge that she. was committing a criminal offence.
rJ1 HE facts appear from the judgment.
Grenier, C.C., for the appellant.
May 19, 1919. De Sampayo J.—
In this case the Solicitor-General appeals from an order ofacquittal. The accused, Asiaumma, appears to be the wife of aman against whom proceedings have been taken in respect of certainproperty stolen from a temple. I gather from the Police Courtrecord, which has been sent up .with the appeal, that the husbandhas been charged with the actual theft. The indictment chargedher. under section 394 of the Penal Code, with having dishonestlyretained a part of that property. She pleaded not guilty, andher counsel at once took the objection that a wife could not beconvicted of receiving or retaining property stolen by her husband,and reference was made to English law on the subject. The DistrictJudge upheld the objection and acquitted the accused. Under anyview of the law I do not see how the case could be disposed of onthis ground without evidence.
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Neither in the Indian Penal Code nor in our Penal Code is- maritalcompulsion specifically stated as an exception to criminal liabilityon the part of a wife. In Justindhamy v. Bastion 1 Browne J.appears to have considered that, since by section 3 of the PenalCode the criminal law previously administered has been repealed,a married woman cannot plead coercion by the husband, but the'case was, in fact, disposed of on its merits. It may be that such adefence cannot be set up as a pure matter of law, but-1 think thatwhen a wife, who is, generally speaking, under the control of thehusband, is charged with such an offence as the receipt or retentionof stolen property, the circumstances under which she acted maybe shown in order to negative the element of dishonesty, or even thepersonal act of receipt or retention itself. The English law appearsto-emphasize the legal identity of the husband and wife, and toregard the presumption of subjection of the wife to the husband asbeing so great that she is exempt from punishment in the case ofcertain offences. Thus, a wife cannot be convicted, as it is presumedthat she acted under marital coercion (R. v, Wardropper2). Butshe may be convicted if there is evidence of her receiving stolen pro-perty independently of and apart from; her husband (R. v- Baines 3).The criminal law of India and Ceylon does not recognize the existenceof a presumption in the same way, but I think the principle of maritalcompulsion is not wholly absent. Mayne’s Criminal Law of India,section 529, while pointing out that a wife may be convicted ofreceiving stolen property from her husband, refers to Reg. v. DeSilva,* and says: “ The Court might, of course; take the charitableview that the wife was merely acting under the orders of her husband,and had no knowledge that she was committing a criminal offence. ”The whole matter appears to me to resolve itself into a question offact. The difference may, perhaps, be put in this way: under theEnglish law the presumption, almost amounting to a conclusion oflaw, is that the wife is not a free agent, and is, therefore, exemptfrom liability; whereas under the system of the Penal Code, the wife,like any other person, is responsible for her acts, and can only freeherself by such proof as Bayne indicates.
The District Judge in this case was too precipitate in acquittingthe accused, on the mere statement to him of the doctrine of theEnglish law without having before him the basis of fact upon whichthe legal question can be determined. The order appealed fromis set aside, and fhe case remitted to the District Court for trial indue course.
(1900) 69 L. J. Q. B. 681.* N. W. P. 120.
3(1898) S Tomb. 106.
* (I860) 8 Cox C. O. 284.
REX v. ASIA UMMA