Before getting into the chapter XX of IPC which deals with offence (s) relating to marriage ; let us quickly look over as to what MARRIAGE literally means.
Introduction to Offence relating to marriage
Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any).
The universality of marriage within different societies and cultures is attributed to the many basic social and personal functions for which it provides structure, such as sexual gratification and regulation, division of labour between the sexes, economic production and consumption, and satisfaction of personal needs for affection, status, and companionship. Perhaps its strongest function concerns procreation, the care of children and their education and socialization, and regulation of lines of descent.
Through the ages, marriages have taken a great number of forms.
This particular chapter consists of 6 sections that deals with various offence (s) of marriage from section 493 to section 498 IPC
The chapters can be further divided into four sub-heads :
a) MOCK MARRIAGE ( sections : 493 and section 496 )
b) BIGAMY (sections: 494 and section 496)
c) ADULTERY (section 497)
d) CRIMINAL ELOPMENT (section 498)
Starting with Section 493
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 essential ingredients of offence (s) relating to marriage under Section 493 I.P.C are two;
1. Causation of a false belief in the existence of lawful marriage by a person and
2. Cohabitation or sexual intercourse with such person causing such a belief.
In other words , Section 493, IPC only punishes a man for obtaining the body of a woman by a deceitful assurance that he is her husband. The essence of the section is therefore the deception caused by a man on a woman in the consequence of which she is led to believe that she is lawfully married to him while in the fact that they are not lawfully married.
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.
What does bigamy mean?
This under English law is known as Bigamy. This section applies to Hindus, Christians, Paris whether male or female but in case of Muslims, it applies only to females as under the muslim personal law, males are allowed in bigamy but not women.
In other words, BIGAMY – Bigamy is the condition of having two wives or two husbands at the same time. The second marriage to someone who is already legally married is void and may be annulled, while there is no effect on the first marriage.
Bigamy may be commited knowingly or unknowingly. When it is commited knowingly, the person is guilty of a crime, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another’s property or some other felony.
What about a bigamy done by mistake/ accidently?
If the same crime is commited unknowingly or accidentally, Supposedly such as when the previous divorce was not finalized due to a technicality, or the previous spouse who was presumed dead is alive, then the remarriage of the spouse is not bigamous.
It is not necessarily a defense to a charge of bigamy that the offending party believed in good faith that he was divorced or that his previous marriage was not lawful.
What is the nature of offence of Bigamy?
The offence of Bigamy is Non-Cognizable, Bailable, Compoundable and triable by a magistrate of first class. Except for Muslim males, bigamy is an offense in case of all person living in India irrespective of religion, caste, sex. Muslim personal laws insists for monogamy for females However, if a Muslim man marries under a Special Marriage Act and not under the Muslim Law, he would be guilty of Bigamy.
Are there any provisio or exceptions?
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 who would usually hear from him or her 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.
S.Radhika Sameena v. S.H.O.,Habeebnagar Police Station, 1997 Cr. LJ 1665 (AP)
The essential ingredients of offence relating to marriage under bigamy are:
1) The accused must have contracted the first marriage
2) Whilst the first marriage was subsisting, the accused must have contacted a second marriage
3) Both the marriages must be valid.What is important to keep in mind is that not only the first but the second marriage must also be a valid marriage in accordance with the Hindu Marriage Act.
Also Read Offences Against the State
However, this sections exempts persons from bigamy in the following situations :
1. Any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction
2. Where the spouse has been continually absent for a period of 7 years and not heard to be alive within such period
Moving ahead with section 495
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 imprison¬ment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Nature of offence under section 495 IPC
This offence is Non-Cognizable, Bailable, Compoundable and triable by a magistrate of first class.
The essential ingredients of offence relating to marriage under Section Section 495 IPC Are:
1) The accused has already been married to some person.
2) The said marriage was legal.
3) The person to whom the accused was married was alive.
4) The accused married another person.
5) The accused when marrying the second time concealed from the person whom the accused married the fact of the first marriage.
NOTE : A minor girl was remarried during the lifetime of her husband. The marriage was arranged by one of her parents and also it was held that she had not attained the age of a major to understand the nature and the consequences of her conduct on the occasion of the second marriage and so the accused is not liable under this section. ( Refer : Godi, (1896) Cr. C No. 55 of 1896 Unreported (Cr C 876)
Section 496 IPC
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.”MOCK MARRIAGES : This section seeks to punish the fraudulent or mock marriages.
The essential ingredients of offence relating to marriage under Section 496 IPC:
1) The accused must have gone through the ceremony of being married
2) The performance of such ceremony should not constitute a laeful marriage
3) The accused must have known that his going through of such ceremony did not amount to his lawful marriage
4) The accused must have acted dishonestly or with intent to be defraud.
We need to understand that section 493 and 496 are somewhat alike but the basic difference Under Section 493 deception is practiced by a man on the woman and sexual intercourse taken place as consequence of deception.
Under Section 496 there is no need of deception, cohabitation or sexual intercourse.
In Section 496 it is necessary that one of the parties to the marriage must have misused marriage ceremony dishonestly or fraudulently.
The offence mentioned in Section 493 can be committed by a male only whereas the offence mentioned in Section 496 can be committed either by a male or a female
Now, comes Section 497
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.
The essential ingredients of offence relating to marriage under section 497 IPC :
1) Intercourse must be committed with the wife of another man;
2) The person must have the knowledge that the woman is the wife of the other man;
3) Sexual intercourse must happen with without the consent of the husband
4) Such sexual intercourse must not amount to the offence of Rape.
Adultery has now been decriminalised, Read more here
What did the adultery law say ?
The law dictated that the woman could not be punished as an abettor. Instead, the man was considered to be a seducer.
It also did not allow women to file a complaint against an adulterous husband. A man accused of adultery could be sent to a prison for a maximum of five years, made to pay a fine, or both. And although there is no information on actual convictions under the law,
Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was “often misused” by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance.
“Men would often file criminal complaints against suspected or imagined men who they would allege were having affairs with their wives. These charges could never be proved, but ended up smearing the reputations of their estranged or divorced partners,” Kaleeswaram told the BBC.
What did the judges say?
All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. “Husband is not the master of wife. Women should be treated with equality along with men,” Chief Justice Misra said.
Judge Rohinton Nariman said that “ancient notions of man being perpetrator and woman being victim no longer hold good”.Justice DY Chandrachud said the law ” perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes”.
He said the law sought to “control sexuality of woman (and) hits the autonomy and dignity of woman”.
Section 498 of the Indian Penal Code
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.
”Criminal Elopment: Criminal elopement is the departure of a married woman from her husband, and dwelling with an adulterer.
The essential ingredients of offence related to marriage under section 498 IPC :
1) Taking or enticing away or concealing or detaining the wife of another man from
a) that man; or
b) any person having care of her on behalf of that man
2) Knowledge or reason to believe that she is wife of another man;
3) Such taking , concealing or detaining must be with the intent that she may have illicit intercourse with any person.
This section punishes person who takes away or entices or detains the wife of another with criminal intent. The main locus of the offence is taking the wife of a husband from his custody. It does not have to be forceful.
This section therefore provides protection to husbands, The subject-matter of this offence is married women only.
Thus, these are the various offence (s) under the Indian Penal Code relating to marriage.
Case laws on offence relating to marriage will be updated on a seperate post soon.
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