Offences relating to Marriage

INTRODUCTION

Marriage is considered to be a very sacred and steady relationship between a husband and wife; and due to some wrong acts which attack directly on the stability of the institution of marriage are considered offences against the marriage. Keeping in view of these antisocial acts, some specific provisions have been provided under the Indian Penal Code for these offences.

Offences related to marriage are dealt within Chapter XX of the Indian Penal Code and all the provisions are covered under six sections of this chapter i.e. Section 493 to Section 498. The offences enumerated (Invalid marriage, Bigamay, Elopement, etc) in this chapter are in one way or another related to infidelity in the institution of marriage.


SECTION 493 – COHABITATION CAUSED BY A MAN DECEITFULLY INCLUDING A BELIEF OF LAWFUL MARRIAGE

As per defined under section 493 of IPC –

            “Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”[1]

This section contains two ingredients –

  1. Deceit causing a false belief in the existence of a lawful marriage.
  2. Cohabitation or sexual intercourse with the person causing such a belief.

The important aspects of these offences are as below :

  1. Analogous law –

The act here is punishable and may also be punishable as rape under section 375, clause (4) of the IPC.

  1. ‘Deceitful assurance’ of marriage –

If a man marries a woman in the bonafide belief that the marriage is effective, and afterwards discovers some flaws rendering it inoperative after which he continues to cohabit with her, he could not be said to have sexual intercourse after causing belief in her marriage by deceit. Any sexual intercourse had with her after the man was made aware of the individuality of her marriage would answer all the requirements of this section, but it scarcely appears to have been his intention.

  1. Essentials –

Under section 493 of IPC what is required is that by deceit means, the accused must induce a belief of lawful marriage and then make the woman cohabit with him. It is obvious that a form of marriage which is not valid must have gone through with a fraudulent intention.

The essence of the offence is that while a woman is not in reality the wife of the accused, it must be shown that he deliberately caused the deception so as to induce a belief in the mind of the woman that she is or has become his wedded wife that in pursuance of such a idea he induced her for which she agreed to cohabit with the man or to have sexual intercourse with him.

In the case of A. Gadita v. T. Pradhan[2], it was stated that unless the practice of such deception was established on the woman by the accused, the offence would not have been taken to have been committed.

  1. Evidence of proof –

To prove deception, it must be established that the accused either dishonestly or fraudulently concealed certain facts or made false statements known to be false.

In the case of Subhanshu Shekhar v. State of Orissa[3], the accused came to the victim’s house in the absence of her parents and put vermilion on her forehead and induced her to believe that he had married her. Thus, obtaining her consent the accused had sexual intercourse with her. The evidence on record showed that he for all practical purposes had practised deceit and caused false belief in the existence of lawful marriage. The offence under section 493 was made out against the accused and his conviction was held proper as no perversity or illegality was shown in arriving at the finding by the court.

  1. Principle –

Here, the offence can only be considered to have been committed if the woman is at least 16 years of age, and so if her age is below 16 years then her consent is considered to be immaterial and cohabitation with her is rape. It is so because if the woman is above 16 years of age, the accused may induce her to believe him as her lawful married husband.

SECTION 494 – BIGAMY

This offence is cognizable, non-bailable, triable by a first class magistrate and non-compoundable.

This section does not apply to Mohammedan males, who are allowed to to marry more than one wife, but it applies to Mohammedan females, and to Hindus, Christians and Parsis of either sex.

But if a Mohammedan husband married under Mohammedan law contracts a second marriage under the Special Marriage Act, he commits the offence of bigamy and is punishable under section 494 of the IPC in view of section 43 of the Special Marriage Act.

Anwar Ahmed v. State of U.P.[4], it was held that although the second marriage was with a Muslim woman, Muslim Personal Law cannot be passed over the Pride Special Marriage Act.

However, in the case of Badanasha Rawther v. Fatima Bai[5], it was stated that a Hindu woman who has already had a living Hindu husband marries either a Muslim or Christian even after embracing Islam or Christinaty commits bigamy.

As per defined under section 494 of IPC –

            “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception – this section does not extend to any person whose marriage with such a husband or wife has been declared void by a Court of competent jurisdiction,

                     Nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage, shall before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”[6]

Essential ingredients of this section are as follows :

  1. The accused must have contracted their first marriage;
  2. He must have married again;
  3. The first marriage must be subsisting; and
  4. The spouse must be living.

It should be noted that bigamy without mens-rea is not an offence. This can be understood with the help of the case law given below –

In the case of Sankaran v. Krishna[7], the husband and wife filed a divorce deed and declared their right to remarry. Now they are unaware of the deed not being operated on to dissolve their earlier marriage and believe it to be an honest mistake when one of them remarries. This cannot be considered an offence under this section.

The Supreme laid down some provisions that must be proven for a conviction on a charge under section 494 of the IPC read with section 17 of Hindu Marriage Act in the case law of L. Obulamma v. L. Venkata Reddi[8], which are as follows :

  • that the complainant was validly married to the accused;
  • that the accused contracted a second marriage during the subsistence of the first;
  • That both marriages were valid and strictly in accordance with laws governing the parties.

To repeal the charge imposed under this section, the accused may plead the following facts in his defence :

  • That his first marriage was null and void even though he had not obtained a declaration to that effect under section 18 of the Divorce Act.
  • The absence of another spouse for a period of seven years should be established. If a second marriage takes place at the expiry of seven years under a bonafide belief based on reasonable grounds that the other spouse is dead, no offence under this section shall be deemed to have been committed.
  • If it is established that the accused and his first wife have been living separately for the preceding seven years, then it will be the duty of the accused to establish that during that time he was aware of her existence. In the absence of such proof from the prosecution, the second marriage of the accused shall be regarded as valid.
  • That at the time of the second marriage, he informed the fact of his first marriage to the other party.[9] if these facts are established by the accused, he or she shall be protected from the offence of bigamy.

SECTION 495 – BIGAMY WITH CONCEALMENT OF FORMER MARRIAGE FROM PERSON WITH WHOM SUBSEQUENT MARRIAGE IS CONTRACTED

The offence under this section is an aggravated form of the offence defined in section 494.

As defined under section 495 of IPC –

      “ Whoever commits the offence defined in the last proceeding having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The offence under this section can only be constituted when the marriage offers an impediment to the validity of the subsequent marriage. For example, a Muslim man is under no obligation to disclose the facts of his previous marriage to his subsequent spouse, but in such a case he may incur a penalty for non-disclosure. Suppose, for instance, a Muslim man concels not only his marriage but also his cast and disguises himself as a Christian to marry a christian woman. Now here in this situation his second marriage is of course void, but he cannot be punished under this section as being a Muslim but he can be punished for cheating under section 495 of IPC i.e. fraudulent marriage.

SECTION 496 MARRIAGE CEREMONY FRAUDULENTLY GONE THROUGH WITHOUT LAWFUL MARRIAGE

      Section 496 of the Indian Penal Code comes under the ‘mock marriage’ offence list. It states that,

                “Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married , shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Section 496 punishes fraudulent or mock marriage. This section applies to such cases in which the marriage ceremony is complete but under no circumstances constitutes a valid marriage and in which one of the parties is induced to believe that a valid marriage has been constituted thereby.

The essential ingredients of Section 496 are:

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

One of the parties to the marriage makes the other party believe that the marriage between them is valid, even though it is not a valid marriage. The deceived party innocently believes that their marriage ceremony is lawful. The offence is that the wrong-doer intentionally, dishonestly and fraudulently made the other party to the marriage  believe that their marriage and marriage ceremony are lawful.

In Kailahs Singh v. State of Rajasthan[10], the accused was married. He induced a girl, saying that he was unmarried. The parents of the girl also believed his words. They gave dowry and arranged a marriage between them. 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 committed the accused under Section 496.

In the case of Prasanna Kumar v. Dhanalakxmi[11]the accused married for the second time during the pendency of special appeal against decree of divorce in violation of Section 15 of the Hindu Marriage Act but without concealing the fact of pendency of the appeal from the girl or her parent, it was held that no conviction could be entered under Section 496 of the Indian Penal Code as the act of the accused was neither dishonest not fraudulent.

            No court shall take cognizance of an offence punishable under Section 496 except upon a complaint made by some aggrieved by such offence. If the complaint is filed by the first wife, the offence falls under Sections 494 and 495 (Bigamy). The first wife is not entitled to file a complaint under Section 496. Only the deceived girl or her parents shall have to file the complaint under Section 496.

   The offence is non-cognizable, and a warrant should ordinarily be issued. It is bailable, but not compoundable and is triable by the Magistrate of the first class. However, in Andhra Pradesh, the offence is cognizable and non-bailable.

SECTION 497 ADULTERY

Section 497 of the Indian Penal Code states that,

  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 offence of rape, is guilty of the offence 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 ingredients for the offence of Adultery under Section 497 are:

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

Section 497 punishes the offence of adultery committed with a married woman without the consent or connivance of her husband. The main feature of the offence of adultery is that the male offender alone has been made punishable.

In a prosecution for the offence of Adultery, the factum as well as the legality and the validity of the marriage between the complainant and the woman involved must be strictly proved beyond reasonable doubt. The mere statement of the complainant or that the woman concerned, that they are married to each other is not sufficient to sustain a prosecution under Section 497 and notwithstanding such admission, marriage between the parties must be strictly proved to have taken place according to law.

Connivance is the act of the mind, it implies knowledge and acquiescence. It is a voluntary blindness to some present act or conduct to something going on before the eyes, or something which is known to be going on without any protest or desire to disturb or interfere with it. Connivance is the willing consent to a conjugal offence, or a culpable acquiescence in a course of conduct reasonably likely to lead to the offence being committed. A court cannot draw an inference of connivance from the fact that the woman has been abandoned by her husband. The consent and connivance has to be proved and not merely to be pleaded because a complaint is not treated as a plaint.

In the case of Yusuf Abdul Aziz v. State of Bombay[12]the Constitutional validity of Section 497 was challenged as violative of Articles 14 and 15 of the Constitution. The Supreme Court held that Section 497 is constitutionally valid since Article 15(3) permits state to make special provisions for women.

But in the landmark case of Joseph Shine v Union of India[13]a five-judge Constitution bench was unanimous in holding Section 497 of the Indian Penal Code (IPC), dealing with the offence of adultery, as unconstitutional and struck down the penal provision.

The top court, which held adultery as a relic of the past, said the autonomy is intrinsic in dignified human existence and Section 497 denuded women from making choices.

The apex court pronounced four sets of concurring judgements to declare penal provision on Adultery and section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional.

They held that,

   “A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.

SECTION 498 ENTICING OR TAKING AWAY OR DETAINING WITH CRIMINAL INTENT A MARRIED WOMAN

Section 498 of the Indian Penal Code states that,

   “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”    

    Section 498 punishes a person who entices or takes away or detains a married woman with a criminal intent. Section 498 deals with the offence of deprivation of the husband of his custody over his wife with the object of having illicit relations with her. Only a married woman is the subject-matter of this offence. There must be some influence, physical or moral, brought to bear by the accused to induce the wife to leave her husband in order that her leaving may amount to taking away by the accused within the meaning of Section 498. Section 498 is intended to protect the husband and is not intended for the benefit of the wife.

The ingredients of the offence under Section 498 are:

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

Taking does not mean taking by force. It implies use of physical or moral influence by the accused to induce the wife to leave her husband. There must be some influence operating on the woman or cooperating with her inclination at the time the final step is taken by the woman or causing separation from the husband.

The word ‘detains’ means ‘keeping back’ such keeping back may be by force; but it need not be by force. It can be the result of persuasion, allurement or blandishments, which may either have caused the willingness of the woman, or may have encouraged, or cooperated with her intended inclination to leave her husband.

    If the intention of illicit intercourse is not proved, even the facts of being the accused knew that the woman is the wife of another person and the offender has taken or detained her have been proved, it would not sustain the charge under Section 498.

   No court shall take cognizance of the offence under Section 498 unless a complaint is made by the husband of the woman or, in his absence by some person who had care of such woman, or some other person mentioned in Section 199 of the CrPC.

  The offence under Section 498 is non-cognizable, and a warrant should ordinarily be issued. It is bailable as well as compoundable and is triable by any Magistrate. 

CONCLUSION

Marriage is considered to be a holy sacrament but the matrimonial offences have spoilt the sanctity of pious institution of marriage. The offences against women are ample, furthermore the offences against women under the matrimonial situations keep on increasing day by day. Provisions dealing with offences related to matrimonial offences have been framed in such a way that raises presumptions against the accused if only certain minimum requirements are met. There is still no clarity against these laws which certainly needs more focus and to be amended and framed in a proper manner keeping in mind all the changing consequences. The time is ripe for women to start raising their voices against the injustice done to them. Under Article 51A(e) of the Indian Constitution it is stated that every citizen of India renounces practices that are derogatory to the dignity of women. There is also a need for general reform in law to protect a woman’s physical and personal dignity in the role of a wife, against violence by husband.

By Saurav Vinod and Preema Safi, Content Board, All India Legal Forum


[1] Section 493, IPC

[2] 1993 O.J.D (Cri) 21 at P. 22

[3] (2002) Cr LJ 4463 (Ori.)

[4] 1991 Cr. L.J. 717 (All)

[5] 26 MLJ 260

[6] Section 494 IPC

[7] 1989 Cr. L.J. 3

[8] AIR 1979 SC 848

[9] Prof. S.N. Mishra :- Indian Penal Code, P. 716

[10] 1992 CrLJ 1005 Raj

[11] 1989  CrLJ 1829(Mad).

[12] AIR 1954 SC 321

[13] 2018 SCC OnLine SC 1676

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this:
search previous next tag category expand menu location phone mail time cart zoom edit close