Offences Relating To Marriage Under Ipc

 

 

    -By Vasundhara Kaushik

    Introduction


    Amid the Vedic time marriage was a ceremony or a sacrament. In this period women enjoyed the freedom of taking any decision and in choosing their better half for marriage. It was a constant bond betweencouples and depended on ideal correspondence between a man and a lady. Through the entire Vedic period, the wife was held as an incredible admiration, without her the house was not a home. She was a partner and companion of her better half and not a dasi.[[1]]

    A progressive decrease in the status of women was found in the post-Vedic period. Man turned into the 'Lord' and the ace of his significant other. He was to be obeyed by her regardless of whether he was without all excellences. According to the perception of the court in Veeraswamy V. Appaswamy[[2]] , the court observed ―Medieval time demonstrated to be inconvenient for ladieswith the assaulting military winding around the ladies were put behind the shroud, tyke relational unions and sati were turned to spare the respect and celibacy of young women. Indeed, even then the intruders enjoyed different social assassinations and filled their collections of mistresses with any women that they got an excessive for. The greatest fall in the status of women was seen amid the British period. There are a few court rulings during British India which held that the Hindus could get married again even without the assent of the spouse.

    The social change developments in the Nineteenth Century and the legitimate exercises or activities saw endeavours to enhance the state of women, which brought about the judgment of polygamy: Marriage turned into a Voluntarily association of one man and one lady', Bombay and Madras courts passed the law with respect to monogamy, which was maintained by the courts as part of the social change. Hindu marriage Act, 1955 made polygamy a crime.[[3]]

    Section 494 Indian penal code embraced the punishment for second marriage amid the subsistence of the first marriage. Laws making monogamy obligatory among the Jews, Parsees were likewise passed, yet at the same time there are various situations where the husbands desert their wives and remarry and in this way, the females are being defrauded.
    In our old, extraordinary country a lady is the representation of a goddess, an image of appreciation and dedication to the divine beings. However, tragically the most recent cases don't mirror this yet and indeed, demand introspection.
    Marriage is a sweet, enthusiastic, sacrosanct and stable connection among a couple. Some wrong demonstrations and conducts which straightforwardly damage the strength of the foundation of marriage are called offences against the marriage. Keeping in view the dangerous and risky nature of these enemies of social acts, the particular sections for these offences have been given under our penal laws.

    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.

    According to the Section[[4]] , mock marriage implies invalid marriage. It is a living together or sex by a man, wedded or unmarried with a woman of all ages whom he prompts to be his better half, however in certainty his concubine. This type of marriage relies on the race or religion to which the parties to the marriage have a place with. On the off chance that the parties to the marriage don't have a place with a similar race or religion, at that point they can change their religion.
    Elements of Section 493: To comprise the offence under section 493 the accompanying elements should be fulfilled:
    1. The accused lived together with the prosecutrix.
    2. He was not lawfully hitched or married to her.
    3. She has agreed to the live together to the cohabitation trusting that she had been legitimately hitched to him.
    4. Such faith in her was actuated by fraud and duplicity with respect to the accused.
    Be that as it may, the section tries to punish deceitful or mock marriage. It applies to those circumstances where a fake administration is experienced envisioning it to be a generous marriage.

    In Suman V. Province of M.P.[[5]] the court opined that if there should be an occurrence of misleading marriage it is irrelevant whether the women so swindled is a major or not. A minor can be made to accept, or betrayed the same amount of as a grown-up can be incited to accept or cheated. In actuality, a minor can be beguiled more effectively than a grown-up or a major.
    Where both the man and women completely realized that they were not a couple and no service of marriage occurred between them, there is no doubt of them accepting something else. In any case, where the claim was that however, they were not a couple, they had sexual association during late hours in the night for an entirely prolonged stretch of time and there was just a guarantee to get married in the future, and the further charge was that one day they went for registering their marriages yet the man fled from there and even thereafter from that point she tried consistently to contact him, the certainties couldn't at all drawn in section 493 IPC, was held in MoideenKutty Haji V. KunhiKoya[[6]]

    Bigamy According to section 494 of Indian Penal Code

    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 area does not reach out to any individual whose marriage with such husband or wife has been pronounced void by a court of competent jurisdiction.

    Nor to any individual who gets a marriage amid the life of a previous husband or wife, if such husband or wife, at the season of the ensuing marriage will have been consistently missing from such individual for the span of seven years, and will not have been known about by such individual as being alive within that time, given that the individual contracting such resulting marriage will, before such marriage happens, advise the individual with whom such marriage is contracted of the genuine state of facts so far as the equivalent are within his or her knowledge.
    Section 494 has been modelled on the English law of bigamy contained under section 12 of the Offense against the Person Act, 1861. It makes bigamy an offence. The extent of this area is wide. It is appropriate to both a husband and wife.

    The section makes bigamy an offence at the instance of all individual living in India independent of a religion of either sex, in particular, Hindus[[7]] Christian[[8]] , Parsis, aside from Muslim population. On account of Muslims anyway a distinction is drawn between a male and a female, as Muslim individual law grants polygamy for guys (upto 4 spouses) however demands monogamy for females. Along these lines a Muslim male getting married to a fifth spouse amid the nonstop of four prior marriage; and a Muslim wife marrying amid the subsistence of a prior marriage, are liable under section 494 IPC .[[9]]

    Be that as it may, if a Muslim man marries under Special Marriage Act, 1954 he would be blameworthy of bigamy under section 494, IPC, on the off chance that he goes into another marriage under Muslim law, In Radhika sameena V. SHO habeeb Nagar[[10]] Police Station the Andhara Pradesh High Court held that when the respondent's marriage with the candidate had occurred not under Muslim law, yet under special marriage Act, the provisions of the Marriage Act would be appropriate or applied and not of the Muslim Law, Accordingly, the court held that the applicant was qualified for compensation and proclaimed the second marriage as void. The expression of whoever having a spouse or wife living marries implies whoever marries lawfully or whoever marries and whose marriage is a substantial one'.

    Bigamy by Concealment of former Marriage Sec. 495 IPC

    prescribe that “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 basic essentials are:
    1. Existence of a past marriage.
    2. First marriage to be valid and lawful.
    3. Second marriage to be void by reason of first spouse or wife living.

    According of section 496 of Indian Penal Code ―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.
    Once in a while, men entangle clueless and innocent women by making them experience the service of being hitched untrustworthily or with fake expectations, knowing completely well that he isn't, along these lines, legitimately married. Such cases are secured by section 496 IPC. It applies to all cases in which a service is experienced yet such function for no situation comprise a marriage and in which one of the parties is cheated by the other into the conviction that it doesn't establish a marriage, or in which impact is looked to be given by the procedure to some collateral fake motive and purpose.

    The pith of the offense is that the wedding function ought to be deceitfully experienced and that there should be no legitimate marriage the parties to the marriage or possibly one of the parties must have the learning that there is no legal marriage as it were, to comprise the offence under this section the prosecution must demonstrate that the person charged with this offence realize that there was no substantial marriage and he had experienced a show of marriage with a false or ulterior intentions.[[11]] But in the event that the accused means to play out a legitimate marriage and genuinely experiences the vital functions amid the lifetime of the other life partner, it will be an act of bigamy which would be punishable under section 494 IPC.

    Difference between Section 493 and 496

    The two sections are somewhat alike but they differ in certain respects. Under Section 493 deception is practised by a man on the woman and sexual intercourse takes place as a consequence of deception. Under section 496 there is no need of deception, cohabitation or sexual intercourse. For the application of this section it is necessary that one of the parties to the marriage must have misused marriage ceremony dishonestly or fraudulently. In brief, we can say that 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.

    As on account of Kailash Singh v. Territory of Rajasthan[[12]] , the denounced who was a hitched man instigated a young lady saying that he was unmarried. The guardians of the young ladies likewise trusted his words. They gave endowment and orchestrated the marriage between the denounced and their girl. The deceived young lady complained about this issue to the police. The court sentenced the accused under sec-496.

    For another situation of Prasanna Kumar v. Dhanlaxmi[[13]] according to the Hindu Marriage Act[[14]] the reality of pendency of the appeal from the young lady or her parents. It was held that no conviction could be entered under section 496, IPC as the act of the charged was neither unscrupulous nor fraudulent.

    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.

    Before the IPC was authorized, infidelity or adultery was not an offence in India either for men or women. It was additionally excluded in the principal draft of the penal code. Be that as it may, the Law Commissioner noticed that the then pervasive social foundation and the secondary and financially subordinate position of ladies were not helpful for punishment of adulterous men. Further, they noticed, that a spouse was socially modelled to acknowledge her significant other's double-crossing relationship as polygamy was a regular issue. In this manner, they consolidated infidelity or adultery as an offence punishing just two-faced men or adulterous men.

    She is the property of her significant other and can't battle autonomously to recover or to region her lost eminence, pride and prestige. Infidelity is an attack on the right of the spouse over his significant other. As such, it is an offense against the holiness of the marital home and an act which is committed by a man.[[15]]

    As indicated by Indian Penal Code, adultery is wilful extra-conjugal sex by a man with a lady whom he knows or has the reason to believe, to be the spouse of another, without the assent or intrigue of her significant other.
    Adultery is an offence committed by a man against a spouse in respect of his better half, his wife. It isn't committed by a man who had sex with an unmarried or a prostitute, or with a widow or even with a married lady whose spouse agrees to it or with his intrigue or connivance. Connivance is a figurative articulation or expression which implies a deliberate visual deficiency to some present act or conduct, to something going at in front of the eyes, or something which is known to go on, with no dissent or want to aggravate or meddle with it. The assent or the eagerness of the women is no reason to the wrongdoing or committing of an act of adultery. [[16]]

    Section 498 reads as follows 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 IPC manages the offence of criminal elopement. The arrangements or provisions of section 498, similar to those of section 497, are proposed to secure the privileges of the spouse and not that of the wife. The substance of the offense under section 498 is the hardship of the spouse of his authority and his appropriate power over his significant other with the object of having unlawful intercourse with her by the demonstration of some blandishment or allurement whereby her agreement so to remain away is obtained by the guilty party.

    The Supreme Court held in Alamgir V State of Bihar[[17]] that the significance of the offence under this section is the hardship of the spouse of his authority and legitimate control of his better half with the object of the denounced having unlawful sex with any individual. The court in Govind Chand Singh Roy V. Haru Chandra Singh Roy[[18]] held that the word 'takes' can't hint the individual or active help of the denounced to the spouse in making tracks in an opposite direction from the husband's assurance or from the security of any individual who has care of her for the husband's sake or on his behalf . On the off chance that a lady can't be regarded to be under the insurance of her better half or of any individual for his sake, the denounced can't be blameworthy or held liable under this section.[[19]]

    Assent of spouse is no defence to a charge under section 498. Section 498 is planned to secure, not the privileges of the wife but rather those of her significant other thus, at first sight, the assent of the wife to deny her better half of his appropriate authority over her would not be material. It is the encroachment of the privileges of the spouse, combined with the aim of unlawful intercourse that is the basic component of the offence.[[20]] Since the object of the section is to offer assurance to the right of the spouse it very well may be no safeguard to the charge under section 498 IPC that the wife readily went with the individual thus he isn't responsible for the detainment.

    Section 498A-Cruelty


    Matrimonial Cruelty in India is a cognizable, non-bailable and non-compoundable offense. It is characterized in Chapter XXA of I.P.C. under Section 498A as, Husband or relative of husband of a lady subjecting or exposing her to cruelty.

    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.

    Cruelty incorporates both physical and mental torment. Wilful conduct in Explanation (a) to section 498A, I.P.C. can be deduced from immediate and circuitous proof. The word cruelty in the Explanation provision appended to the section has been given a more extensive significance.
    It was held in Kaliyaperumal v. Province of Tamil Nadu[[21]] , that cruelty is a typical fundamental in offences under both the sections 304B and 498A of IPC. The two sections are not commonly comprehensive but rather both are unmistakable offences and people vindicated under section 304B for the offence of dowry demise or demise can be sentenced for an offence under sec.498A of IPC. The importance of cruelty is given in clarification to section 498A. Section 304B does not contain its importance but rather the significance of cruelty or provocation as given in section 498-A applies in section 304-B too.

    On account of Inder Raj Malik v.Sunita Malik[[22]] , it was held that the word 'cruelty' is characterized in the clarification which inter alia says that harassment of a lady so as to pressure her or any related people to satisfy any unlawful need for any property or any important security is cruelty.

    Section 304B-Dowry Death


    The Indian Penal Code under defines it as-
    Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

    Explanation, For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
    (2) Whoever commits dowry death shall be punished with imprison¬ment for a term which shall not be less than seven years but which may extend to imprisonment for life.
    Punishment—Imprisonment of not less than 7 years but which may extend to imprisonment for life—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

    Basic ingredients[[23]]
    1. Death of a lady ought to be brought about by burns or bodily injury or generally than under typical conditions.
    2. Death ought to have happened inside seven years of her marriage.
    3. The woman more likely to have been exposed to cruelty or badgering by her better half or any relative of her significant other.
    4. Cruelty or badgering ought to be for or regarding the demand of dowry.
    5. Cruelty or badgering ought to have been dispensed to the woman before her demise.

    In Prema S. Rao v. YadlaSrinivasa Rao[[24]] ,it was held that to pull in the ingredients of section 304B, one of the fundamental fixings which is required to be built up is that "soon before her demise" she was exposed to cruelty and badgering "regarding the demand of dowry".



    References

    1) Manusmriti V. 147.
    2) Bindu V. Kaushalya (1982) 13 All. 126.
    3) 1992, Cr. Lj. 2106.
    4) Sec 493,Indian Penal code,1860.
    5) (1987) 3 crimes, 112 (MP).
    6) AIR 1987 Ker. 184.
    7) Section 17, Hindu Marriage Act 25 o 1955 makes bigamy an offence for Hindus.
    8) Christian marriage Act XV of 1872.
    9) Parsi Marriage ACTIII of 1936.
    10) Hari Singh Gour, Penal Law of India, p. 4605, 11th edn Vol IV.
    11) Kshitishchandrachaudhry V. Emperor AIR 1937 214.
    12) 1992,Cr.LJ 1005 Raj.
    13) 1989 Cr.LJ 1829 (Mad).
    14) Sec-15,Hindu Marriage Act,1955.
    15) Olga Thelma Gomes V. Mark Gome .AIR 1959 Cal. 451.
    16) Gul Mohammad V. Emperor AIR 1947 Nag. 121.
    17) AIR 1959 SC 436.
    18) (1968) Cr. LJ. 1352.
    19) KanbiKarsanNanan V. KanbiKassanNanan AIR 1951 Kutch 17.
    20) Supra note 17.
    21) 2004 (9) SCC 157.
    22) 1986 (2) Crimes 435.
    23) Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
    24) AIR 2003 SC 11.






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