CHAPTER - 18
OFFENCES RELATING TO MARRIAGE
Section 493 to Section 498
Chapter XX from sections 493-498 IPC, deals with offenses relating to marriage. All these offenses deal with infidelity within the institution of marriage in one way or another. Chapter XX-A, containing only one section 498A dealing with cruelty to a woman by her husband or his relatives to coerce her was added to the IPC by the Criminal Law (Second Amendment) Act 1983. The following are the main offenses under this chapter:
- Mock or invalid marriages (493 and 496);
- Bigamy (494 and 495);
- Adultery (497);
- Criminal elopement (498);
- Cruelty by husband or relatives of husband (498A)
Section 493: Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
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.
The following are the elements of offence under this section:-
1. Deceit causing a false belief in the existence of a lawful marriage.
2. Cohabitation or sexual intercourse with the person causing such belief.
Section 493 punishes the offence of deception in marriage. It states that when a man either married or unmarried, induces a women to become his wife on a false pretext and she is his concubine, such an offence is punishable by law. In other words Section 493 is for every man who deceives a woman into having carnal intercourse with him under the pretext that she is married to him. For this, the Indian Penal Code provides for a ten-year imprisonment with a fine.
Section 496-Marriage ceremony fraudulently gone through without lawful marriage
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.
INGREDIENTS
There are two essential ingredients of this section:-
1) Dishonestly or with a fraudulent intention going through the ceremony of marriage.
2) Knowledge on the part of the person going through the ceremony that he is not thereby lawfully married.
The essential elements of both the sections i.e. 493 and 496, is that the accused should have practiced deception on the woman, as a consequence of which she is led to believe that she is lawfully married to him, though in reality she is not. In section 493, the word used is ‘deceit’ and in section 496, the words ‘dishonestly’ and ‘fraudulent intention’ have been used. Basically both the sections denote the fact that the woman is cheated by the man into believing that she is legally wedded to him, whereas the man is fully aware that the same is not true. The deceit and fraudulent intention should exist at the time of the marriage. Thus mens rea is an essential element of an offence under this section. For this, the Indian Penal Code provides Imprisonment upto 7 years and fine.
Section 494: Marrying again during lifetime of husband or wife
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 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 continually absent from such person for the space of seven years, and shall not 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.
INGREDIENTS
This section has following ingredients:-
(i) The accused was already married to some person;
(ii) Marriage with such a person was valid;
(iii) The person whom, he or she has married was still alive;
(iv) The accused has married another person.
Bigamy is an offence when a person, while their husband or wife is still living marries another person. The offence of bigamy mandates that the accused must have a previously contracted marriage, thereby attaching criminality to the act of marrying the second time by the wife or husband when their respective spouses are living. This second marriage is therefore held to be void.
To prove the offence of bigamy the prosecution is thus required to show that the second marriage took place in the subsistence of the first marriage. The act of second marriage would not amount to the offence of bigamy if the first marriage was itself invalid.
EXCEPTIONS OF SECTION 494
There are two exceptions attached to the provision of Section 494 and those are:
1. When a competent court declares the first marriage void.
2. Continual absence of the former wife or husband for a period of 7 years and further no information of them being alive, provided that the spouse in the second marriage is informed about all the facts regarding this.
Section 108 of the Indian Evidence, 1872 provides that a person is presumed to be dead if it is proved that the person has not been heard by those who would naturally have heard of him for a period of more than 7 years. The burden of proof that such a person is alive lies with the person who is trying to establish the same.
Gopal Lal v State of Rajsthan AIR 1979 SC 713
To establish a conviction under Section 494, the prosecution is required to prove that not only was the first marriage valid but the second marriage was also valid. All the marital ceremonies are necessary to be duly performed by both the parties governed by their respective personal laws thereby legitimising the wedlock.
Effect of conversion
Usually converting from one religion to another by one of the spouses causes difficulty in the household because this brings a shift in the household because this brings a shift in the personal laws governing the parties. The primary issue is that certain religions prohibit polygamy whereas some permit it.
In Lily Thomas vs Union of India (2000 6 SCC 224), the Apex Court was approached to review Sarla Mudgal vs Union of India (AIR 1995 SC 1531) on the ground that the judgment in the impugned case is contrary to fundamental right to life and liberty and freedom of religion as enshrined in Articles 20, 21, 25 and 26 of the Constitution. Rejecting the review petition being without any substance the Court affirmed its earlier judgment of Sarla Mudgal. The court said that the change of religion does not dissolve the marriage performed under Hindu Marriage Act, 1955. A second marriage during the lifetime of the spouse would be void under sections 11 and 17 of the Hindu Marriage Act, 1955 besides being an offence of bigamy under section 494, IPC. The court held that, the contention of the petitioner that the judgment in Sarla Mudgal amounts to violation of the freedom of conscience and free profession, practice and propagation of religion as guaranteed under Articles 25 and 26 of the Constitution is farfetched and is artificially carved out by such persons who alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 25 of the Constitution.
Punishment:
Section 494 of the Indian Penal Code exempts from punishment a second marriage bona fide contracted after seven years absence of the husband or the wife, who has not been heard of by those likely to hear from him or her, during the period. Offences under sec 494 and 495 of the Indian Penal Code are non-cognizable. Only the person aggrieved can complain in case of bigamy. If it is the wife who is aggrieved, then her father can complain as he is the lineal ascendant of the wife.
Section 495: Same offence with concealment of former marriage from person with whom subsequent marriage is contracted
Whoever commits the offence defined in the last preceding section 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 described under this section is an aggravated form of the offence defined in Section 494. Severe punishment has been provided by Section 495 for the offenders of bigamy who perform a second marriage without revealing about the former marriage while contracting this second marriage. The offender is punishable of simple or rigorous imprisonment of 10 years with an unspecified amount of fine as provided by Section 495.
Section 497: Adultery
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 case the wife shall not be punishable as an abettor.
MEANING
Adultery means voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery however varies from country to country and statute to statute.
Object
The object of Section 497 is to preserve sanctity of marriage. The society abhors marital infidelity.
ESSENTIAL ELEMENTS OF SECTION 497
In order to constitute the offence of adultery, the following must be established:– 1. Sexual intercourse between a married woman and a man who is not her husband; 2. The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man; 3. Such sexual intercourse must take place with her consent, i.e., it must not amount to rape; 4. Sexual intercourse with the married woman must take place without the consent or connivance of her husband.
Who may file a complaint?
Only husband of the woman with whom adultery is committed is treated as an aggrieved person and only he can file a complaint. However, in his absence, some other person who had care of the woman on his behalf at the time when such offence was committed may file a complaint on husband’s behalf if the court allows.
Who can be prosecuted?
It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual. The adulterous woman is not even considered to be an abettor to the offence. Woman is exempted from criminal liability.
Decriminalizing Adultery
It was on September 28, 2018, that the apex court unanimously struck down Section 497 of IPC which was relating to adultery. The bench comprised of the then Chief Justice Deepak Misra, Justice Nariman, Justice Chandrachud and Justice Malhotra. The 158-year-old law of colonial era was struck down by the court which it said treated a woman as the property of a man.
Joseph Shine v. Union of India (2018 SCC OnLine SC 1676),
Facts :- Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offense of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. He argued that it discriminated against men by only holding them liable for extra-marital relationships while treating women like objects.
Issued raised
1. Whether section 497 of the IPC (which makes adultery a criminal offense) is constitutionally valid?
2. Whether section 198(2) of the code of criminal procedure,1973 is violative of fundamental rights (14,15 and 21)?
3. Whether Section 497 is an excessive penal provision which needs to be decriminalized?
Judgment
1. 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.
2. Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favor of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offense of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.
3. The true purpose of affirmative action is to uplift women and empower them in socioeconomic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”.
4. The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21.
Section 498: Enticing or taking away or detaining with criminal intent a married woman
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.
This section punishes a person who entices or takes away or detains a married woman with a criminal intent. The gist of the offence under this section consists in the deprivation of the husband of his custody over his wife with the object of having illicit relation with her. Thus this section provides protection to the husband who alone can institute prosecution for an offence of this nature. Only a married woman is the subject-matter of this offence. The following are the ingredients of this section:-
(i) The woman in question is the wife of another man;
(ii) She was under the care of her husband, or of someone on his behalf;
(iii) The accused enticed or took away the woman from her husband or that other person or detained her;
(iv) The accused knew or had reason to believe that she was the wife of another person;
(v) The accused detained or enticed or concealed such a woman with intent that she might have illicit intercourse with some person.
CONCLUSION
The Act provides various protections regarding the crime against marriage. There are many offences like bigamy, cruelty, dower-death, adultery, etc. which are protected under the Indian Penal Code and CrPC. As compared to the earlier time there is an improvement regarding the laws and orders for the women.
The acts which are for the woman should be applied strictly and the government should ensure that the acts which are there for women must be successfully protecting the woman and their rights. The government and NGOs should work together for the welfare of the women and stop offenses against marriages which usually a women face.
SECTION 498A-CRUELTY
For safeguarding the interest of a woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860 was amended in 1983 and Section498A was inserted which deals with ‘Matrimonial Cruelty’ to a woman. The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A was been added to the Indian Evidence Act to raise presumption regarding abetment of suicide by married woman.
Matrimonial Cruelty in India is a cognizable, non bailable and non-compoundable offence. It is defined in Chapter XXA of I.P.C. under Section 498A as Husband or relative of husband of a woman subjecting her to cruelty. Which states that:-
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.
Explanation – for the purpose of this section, “cruelty” means:
a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband.
Meaning of Cruelty
Cruelty includes both physical and mental torture. Willful conduct in Explanation (a) to section 498A, I.P.C. can be inferred from direct and indirect evidence. The word cruelty in the Explanation clause attached to the section has been given a wider meaning.
Section 498A can only be invoked by wife/daughter-in-law or her relatives. Section 498A was introduced in the IPC in 1983 closely followed by Sec 304B which defined the special offence of dowry-related death of a woman in 1986 and the related amendments in the Indian Evidence Act 1872. It is believed that Section 498A and Section 304B were introduced to complement each other and be part of a scheme, since Sec 304B addresses the particular offence of dowry death and Sec 498A sought to address the wide-scale violence against married women for dowry.
It was held in Kaliyaperumal vs. State of Tamil Nadu 2004 (9) SCC 157 that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well.
Inder Raj Malik vs. Sunita Malik 1986 (2) Crimes 435.
it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
MISUSE OF SECTION 498A
Nowadays women have started using it as a tool to detain their husbands if they are not pleased with them. There are many such false reports filed every year which raises the pendency of court cases. due to these false accusations and immoral exercising of section 498A by women, the innocent husband and his family have to suffer exponentially. During this period of suffering and ignominies, some of the men give up and commit suicide. So, here comes the point of exercising power righteously with thorough investigation and crossexamination of the whole matter.
Savitri Devi v Ramesh Chand & Ors (2003) DMC 328 the court held clearly that there was a misuse and exploitation of the provisions to such an extent that it was hitting at the foundation of marriage itself and proved to be not so good for health of society at large. The court believed that authorities and lawmakers had to review the situation and legal provisions to prevent such from taking place.
In Arnesh Kumar vs. State of Bihar (2014 8 SCC 273),
The Supreme Court said that no arrest should be made immediately in the offences which are allegedly committed by the accused and the offence is cognizable and non-bailable, with particular reference to S. 498A. It laid down certain guidelines for the police officers to follow relating to the arrests made under the section, due to increase in number of false complaints.
Who can file a complaint under Section 498A, IPC?
Most significantly, the victim i.e., female must be married to the person to register a case under 498A case proceedings. Even the second wife holds the right to file a case against her husband and other perpetrators for subjecting her to cruelty and harassment. But any other woman who is not in a marital relationship with the person cannot file the complaint about the cruelty she has gone through under Section 498A of IPC. The complaint can either be filed by the aggrieved woman, or any other person related to such aggrieved woman by blood, adoption, or marriage. In fact, it can be a public servant also who is notified by the State government.
Limitation Period for Filing a 498A Complaint
There is a certain time limit within which the complaint has to be filed. As per section 468 Cr.PC, the complaint regarding the offenses under 498A must be filed within the time period of 3 years from the time the alleged last incident of cruelty happened. Exceptionally, cognizance of such offense can be cognizable by the court even after the limitation period when there is a dire need for justice.
Punishment under Section 498A
All the convicted ones will be subjected to the imprisonment for a term which may extend to 3 years or shall be liable to fine under Section 498A punishment. There are certain other provisions too which are interrelated to this IPC section, i.e. the Protection of Women from Domestic Violence Act, 2005, the Indian Evidence Act, 1872, etc.
CONCLUSION
‘Marriage is the voluntary union for life of one man and one woman to the exclusion of all others.’ It is a social institution where husband has the responsibility to take care and maintain his wife. He cannot neglect his duties. But on this great institution a stigma called ‘dowry’ still exists. Women are ill-treated, harassed, killed, divorced for the simple reason that they didn’t brought dowry. For safeguarding the interest of woman against the interest of woman against the cruelty the Indian Penal Code,1860 was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman. This Section only provides for the remedy to woman only and these days it is being used as a ‘brahamastra’ by the woman. It is a highly debatable issue these days, if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that this Section be amended and some changes like mentioned above should be brought up in this law.