OFFENCES RELATING TO MARRIAGE – AN OVERVIEW

OFFENCES RELATING TO MARRIAGE – AN OVERVIEW

Introduction 

Chapter XX, IPC, deals with offences relating to marriage. All these offences deal with infidelity within the institution of marriage in one way or another. Chapter XX-A, containing only one section (s 498A) dealing with cruelty to a woman by her husband or his relatives to coerce her and her parents to meet the material greed of dowry, is added to the IPC by the Criminal Law (Second Amendment) Act 1983.

Offences relating to marriage

The following are the main offences under this chapter

(1) Mock or deceitful invalid marriages (sec 493 and 496).

  • Cohabitation is caused by a man deceitfully inducing a belief of lawful marriage (sec 493).

Section 493 is invoked when a man either married or unmarried, induces a woman To become his wife, but in reality, is his concubine this offense is committed by a person falsely causing a woman to believe that she is lawfully married to him & to cohabit or have sexual intercourse with that belief.

An essential ingredient of the offense under this section is 

  • The accused cohabited with the prosecutrix.
  • He was not legally married to her
  • She has consented to the cohabitation believing that she had been lawfully married to him.
  • Such belief in her was induced by deceit on the part of the accused.

Nature: offense under this section is non – cognizable, non-bailable, non-compoundable & is triable by a first-class magistrate.

  • The marriage ceremony was fraudulently gone through without lawful marriage (sec 496)

Section 496 applies in such instances in which the marriage ceremony is complete but under no circumstance constitutes a valid marriage & in which one of the parties is induced to believe that a valid marriage has been constituted thereby.

An essential ingredient of the offense under this section is 

  • The accused went through the form of marriage
  • He knew that he was not lawfully married.
  • He went through the form of marriage dishonestly or fraudulently

In Kailash Singh v.  State of Rajasthan, the accused was a married person, he induced a girl by saying that he was unmarried. The parents of the girls also believed his words. They gave dowry & arranged marriage between the accused & their daughter. at the time of the marriage ceremony, the parents came to know the fraudulent act of the accused. The deceived girl complained about the matter to the police. the court held that accused has committed the offense under section 496.

Nature: offense under this section is non – cognizable, bailable, non-compoundable & is triable by a first-class magistrate.

(2) Bigamy (sec 494 and 495).

  • Marriage again during lifetime of husband or wife (sec 494).

Section 494 comes into operation when the accused having been married once & still subsisting has gone through marriage a second time will be subject to punishment with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Essential ingredients of the offense under this section are 

  • The accused has already been married
  • Such marriage was legal
  • The person with whom he was married was still alive
  • The accused married another person
  • Such subsequent marriage was void because it took place during the life of the first consort.

The scope of this section is comprehensive & it applies to members of all communities living in Indian except Muslims.

Exception 

under the following two circumstances, marriage is not an offense

  • whose marriage with such husband or wife has been declared void by a court of competent jurisdiction &
  • when the former husband or wife has been continuously absent for seven years & not heard of as being alive within that time, provided the real state of facts shall be disclosed to the person with whom the second marriage is contracted

In Santosh Kumari v. Surjit Singh, the first wife permitted her husband for his second marriage. Both the wife & husband applied for permission before the District Court, which was accorded by that court. The proposed second bride came to know it & filed an appeal before the High court. The court held that no court is authorized to permit second marriage even if it is at the application of the first wife. Such permission has been held illegally.

Nature: offense under this section is non – cognizable, bailable, compoundable with the permission of the court & is triable by a first-class magistrate.

  • Same offense with concealment of former marriage from person with whom subsequent marriage is contracted.

Section 495 provides an aggravated form of the offense of bigamy, where there is a concealment of the fact of former marriage from the person with whom the subsequent marriage is contracted shall be subject to punishment with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Essential ingredients of the offense under this section are 

  • The accused had already been married
  • Such marriage was legal
  • The person with whom he was married was still alive
  • The accused married another person
  • The accused had, before his second marriage, concealed from his spouse the fact of the previous marriage.

Nature: offense under this section is cognizable, bailable, non-compoundable & is triable by a first-class magistrate

(3) Adultery (sec 497).

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case the wife shall not be punishable as an abettor.

The essential ingredients of a given offense are as follows 

  • The accused had sexual intercourse with a woman
  • Such a woman was married
  • The accused knew or had reason to believe it
  • The connection was held without the consent or connivance of the husband
  • The sexual connection so held does not amount to rape.

Nature: offense under this section is non – cognizable, bailable, compoundable & is triable by a first-class magistrate.

Constitutional Validity of ‘Adultery ‘

In Yusuf Aziz v.  State of Bombay 

It was the first case in which the constitutional validity of adultery was challenged on the ground that it was violative of fundamental rights under articles 14 & 15 of the constitution, the petitioner contended that section 497 of the Indian penal code discriminate against men by not penalizing women under this offense. the court held that under Article 15(3) state may make special provisions for women & section 497 is constitutionally valid.

In Joseph Shine v. Union of India 

In 2017 a petition was filed challenging the constitutional validity of section 497 of the Indian penal code, 1860. the apex court struck down section 497 of the Indian penal code on the ground that it violated Articles 14, 15 & 21 of the constitution & held unconstitutionally.

(4) Enticing or taking away or detaining with criminal intent a married woman.

Section 498 any person who entices or takes away or detains a married woman with criminal intent from the custody of husband

with the object of having illicit relation with her shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Essential ingredients of the offense under section 498 are 

  • The woman was married
  • The accused knew or had reason to believe that she was the wife of another man
  • She was at the commission of the offense living under the care of her husband or someone else on his behalf
  • The accused took or enticed her away from her husband or that other person or concealed or detained her
  • His intention in doing so was that she might have illicit intercourse with him somehow.

Nature: offense under this section is non – cognizable, bailable, compoundable & is triable by any magistrate.

(5)  Husband or relative of husband of a woman subjecting her to cruelty.

Section 498-A has been introduced in the IPC by the criminal law (Amendment) Act, 1983 to combat the menace of dowry deaths.

Section 498-A envisages that if a husband or the relative of the husband of a woman subjects such woman to cruelty, he shall liable to a punishment of three years & fine. the term cruelty signifies any willful conduct driving the woman to commit suicide or to cause grave injury or danger to life, limb, or health of the woman, harassment of the woman to coerce her or any person related to her to meet any unlawful demand for any property or valuable security.

Cruelty or harassment need not be physical. Even mental torture would be a case of cruelty & harassment within the meaning of Section 498-A

In-State of Karnataka v. Moorthy, the husband disregarded his duty to provide his wife & infant child the elementary means of sustenance. He deliberately & irresponsibly squandered his earnings on gambling & other vices & thereby starved his wife & infant child. This was held to be amounting to cruelty under section 498-A.

In-State of Karnataka v. K.S.Manjunath Chary, the father-in-law & husband were shown to demand dowry through their demand was meant by the step-father of the girl at the time of marriage. They also attacked her chastity when there was no reasonable ground for it. The homicidal death of the wife took place within five months of marriage. the court said that all this amounts to cruelty within the meaning of section 498-A.

In P.B. Bikshipathi v. the State of AP, it was been held that drinking & late-coming habits of the husband coupled with beating & demanding dowry amounts to cruelty within the meaning of section 498-A.

Nature: offense under this section is cognizable, non-bailable, non-compoundable & is triable by a first-class magistrate.

Conclusion

The provision under this chapter are given because of protection & the right of a woman to file a complaint or being subjected to cruelty, harassment by her husband or any relatives of the husband . the constitution under article 51A(e) demand that every citizen of India renounce practice that derogatory to the dignity of woman & there are a proposal for reform by Law Commission of India has offered a couple of major proposals for reform in the existing law relating to bigamy, adultery, and cruelty by husband or his relatives.

  • It recommended that the maximum punishment of seven years’ imprisonment provided for a fraudulent marriage ceremony should be reduced to three years’ imprisonment.
  • It recommended that the first exception to s 494 should be deleted as a person whose alleged first marriage was void ab initio cannot be said to ‘be married’ and his subsequent marriage, therefore, cannot be said to be contracted during the ‘subsistence’ of the earlier marriage.

Reference

1.S.R.Myneni, Law Of Crimes ( Indian Penal Code, 1860), (Asia Law House, Hyderabad, 2009).

  1. Dr.K.I.Vibhute, PSA Pillai’s Criminal Law,(LexisNexis,Haryana,12th ed.,2014).

Author: Gururaj G Udagi,
Karnataka State Law University, 3rd year Student

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