OFFENCES RELATING TO MARRIAGE
In ancient times, marriage was considered to be a sacred ceremony. It is termed as a ‘sanskara’ which was mandatory for everyone. According to Hindu beliefs, bonds are made in heavens and supposed to last for seven lifetimes. Its ideals are the fulfillment of dharma, procreation, and enjoyment of sexual pleasure. Due to modern culture influence and English education the marriage system has gone under considerable changes. With these changes laws are also developed to tackle offences relating to marriage.
OFFENCES RELATING TO MARRIAGE :-
Chapter XX of Indian penal code deals with offences relating to marriage containing Section 493 to 498 and Chapter XX-A containing only one section that is section 498 A which was added to Indian Penal Code by the Criminal Law (Second Amendment)[1]. These offences are read under five headings that are; mock or invalid marriages (Section 493 & 496), Bigamy (Section 494 & 495), Adultery (Section 497), Criminal Elopement (Section 498), Cruelty (Section (498 A).
MOCK AND INVALID MARRIAGES (SECTION 493 & 496) :-
Section 493[2] is when a man causes deceit to women who is not his wife but makes her/convinces her to believe that she is her wife and does a sexual intercourse. In the case Subhransu Sekhar Samantray vs. The State [3], the Orissa High Court contended that the statement of the prosecutrix that she had resisted the establishment of sexual relations with the accused, but when he put vermillion on her head he declared her, his wife, and gave his words that he would accept her publicly after getting a job. This is sufficient to constitute an offence under Section 493 of the IPC.
Section 496[4] the accused here knows that no valid marriage will be affected but still goes through some form of marriage dishonestly and with a fraudulent intent. Where in a case under this section the trial had gone for about seven long years, the accused had become insolvent as a result of the same, considerable mental agony was caused to him during all these years, the first wife who was the real aggrieved party was passed away and the second wife had to bear a lot of suffering during these years without any fault on her part, it was held that the sentence already undergone by him was sufficient punishment to him.
BIGAMY (SECTION 494 & 495) :-
Second marriage during the effect of the first marriage is illegal in India and the relationship arising from the same is void ab initio. It becomes an offence only if the husband or wife is alive. It is an offence even if it is performed with the consent of the first wife. It is punishable under Section 494[5] and Section 495[6] of the Indian penal code 1860. The aforementioned offence is termed as bigamy. It can be connected by either of the spouses on to one another. However, there are some exceptions it:
(a) If the first marriage has been declared void by the following by a court or holding competent jurisdiction
(b) If the previous spouse has been continuously absent for a period of seven years and not heard of as being alive or provided that the facts are disclosed to the person with whom the second marriage is made.
BIGAMY FOR HINDU :-
The section makes bigamy an offence in case of all person living in India irrespective of religion of either sex, namely, Hindu, Parsi, Christian, except Muslim males. Hindu includes Sikhs, Jains, Buddhists vide Article 25 Exception II to the Constitution of India. Thus bigamy between 2 Hindus will be void if the marriage is solemnized after commencement of the Hindu marriage act and at the date of such marriage either party had as spouse living.
BIGAMY FOR MUSLIMS :-
According to Muslim law, it permits polygamy for males but insist on monogamy for females. Therefore, a Muslim male marrying a 5th wife during the continuance of 4 female marrying during the subsistence of an earlier marriage are punishable under Section 494, 495. According to the case S. Radhika Sameena, (Andhra Pradesh high court) if a Muslim man marries under special marriage act, 1954 he would be guilty of bigamy under Section 494, 495 of IPC if he commit into another marriage under Muslim law.
ADULTERY (Section 497) :-
Earlier, Section 497[7] had a term up to five years, with or without a fine, to a person who had sexual intercourse with the wife of other man without the consent of that man. The man would be guilty of adultery. Meanwhile, in such a case, the wife would not be punished as an abettor.
Joseph Shine v. Union of India[8], this case challenged the constitutionality of section 497 which treats men and women unequally, as women are not subject to prosecution for adultery, and also they cannot prosecute their husbands for adultery. And finally the five judge bench contended that it is archaic, unconstitutional and arbitrary and decriminalized section 497 but it continues to be strong grounds for divorce.
Criminal elopement (section 498);
Section 498[9] of the IPC states that when someone takes or entices away the wife of any other man, from that man or from her care taker with intent that she may have furtive intercourse with any person who detains with such intent any such woman, shall be held liable and punished with imprisonment of two years, or with fine or with both.
The essential ingredients are:
- Takes or entices away
- Woman should be married
- Knowledge
- Taken from control of husband or care taker.
- Intention to possess illicit intercourse
- Conceals or detains her.
In Alamgir v. State of Bihar[10], it has been observed that if a man knowingly goes away with the wife of another man in a way to deprive him of his control over her, with the intent to possess furtive intercourse then it would represent an offense within the meaning of the said section.
CRUELTY (Section (498 A) :-
Section 498A[11] of the IPC prohibits torture by the husband or his relatives on the wife by punishing them for causing harassment or torturing the wife to force her or her relatives to accept the unlawful demands related to Dowry.
The essential Ingredients are:
1) the person should either be the husband or the relatives of the husband of the women.
2) the women should be subject to cruelty.
In Mustafa Shaikh vs. State of Maharashtra [12] it was held that if within one year of marriage death of wife was caused, and evidences prove that after marriage she was subject to torture and harassment by the accused in greed of gold jewels and money by the accused. Therefore, the accused held liable for punishment under Section 498-A of the Indian Penal Code.
Conclusion :-
A comparative glance of all the above mentioned matrimonial offences show that there cannot be a straightjacket formula for dealing with these problems. Criminal law like any other law is used as an instrument for social change. In case of matrimonial offences it is not only the interest of either the husband or wife needed to be taken into consideration, but also the interest of the family and to certain extent also the larger interest of society needed to be considered. The challenge before the criminal law today is to bring a balance among such conflicting interest.
[1] Kudrat, “A critical overview of offences against women under the Indian penal code” (on February 4th 2015) Acadmike www.lawctopus.com (last visited on July 5th 2020).
[2] S. 493 of the Indian Penal Code 1860: cohabitation caused by man…………….and shall also be liable to fine.
[3] Subhransu Sekhar Samantray vs. The State, 2002 criLj 4463.
[4] S. 496 of the Indian penal code 1860: marriage ceremony fraudulently……..and shall also be liable to fine.
[5] S. 494 of the Indian penal code 1860: marriage again during the life time…..and shall also be liable to fine.
[6] S. 495 of the Indian penal code 1860: same offence with concealment of……and also be liable to fine.
[7] S.497 of the Indian penal code 1860: whoever has sexual intercourse……. be punishable as an abettor.
[8] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
[9] S.498 of the Indian penal code 1860: Enticing or taking away…extend to two years, or with fine or with both.
[10] Alamgir v. State of Bihar, 1959 AIR 436, 1959 SCR Supl. (1) 464.
[11] S.498 A of the Indian penal code 1860: Cruelty by husband or………..and shall be liable to fine.
[12] Mustafa Shaikh vs. State of Maharashtra, 2008 (110) Bom. L R 48, I (2008) DMC 194.