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Offences related to marriage (sec 493 to 498A)

Offences Relating To Marriage (Indian Penal Code 1860, Section 493 to 498A)

Chapter XX of IPC deals with offences relating to marriage. All these offences are within the institution of marriage. chapter XX-A containing only one section (s.498A) dealing with cruelty to a woman by her husband or relatives to coerce her and her parents to meet material greed of dowry was added to the IPC by criminal law (Second amendment act,1983).

Following are main offences under this chapter:

  1. Mock or invalid marriage (section 493 and 496).
  2. Bigamy (section 494 and 495).
  3. (Adultery (section 497)
  4. Criminal elopement- seduction (section498)
  5. Cruelty by husband or relatives of husband (section 498A)

Section 493- cohabitation caused by 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 term which may extend to ten years and shall also be liable to fine. It is non-cognizable and non-bailable.

Section 496- Marriage ceremony fraudulently gone through without lawful marriage

Whoever dishonestly or with fraudulent intention goes through the ceremony of being married knowing that he is not thereby lawfully married shall be punished with imprisonment for term which may extend to seven years and shall also be liable for fine. It is non-cognizable and bailable.

In both the sections woman is cheated by the man into believing that she is legally married to him, but men is fully aware that the same is not true.

Section 494- Marrying again during lifetime of husband or wife (Bigamy)

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

Exception: This section does not extend to any person whose marriage with such husband or wife has been declared void by court of competent jurisdiction. Any person who contracts marriage during the life of former husband or wife, if such husband or while at the time of subsequent marriage shall been continually absent from such person for seven years and shall not been heard by such person as being alive within that time provided the person contracting such subsequent 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.

Section 495- Same offences with concealment of former marriage from person with whom subsequent marriage is contracted.
The essential ingredients are:
  1. Existence of a previous marriage.
  2. Second marriage to be valid.
  3. Second marriage to be void by reason of first husband or wife living.
  4. Non-disclosure of first marriage.

Whoever commits the offence defined in 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.

Pashaura Singh v state of Punjab, AIR 2010 SC 922
In the above case it was held that, the first marriage should be substituting at the time of second marriage and should be validly contracted one. If the first marriage is not a valid marriage, the second marriage does not amount to bigamy.

Section 497- Adultery

Adultery is sexual intercourse between a married person and someone other than the lawful spouse. Under law adultery is defined as a consensual physical correlation between two individuals who are not married to each other. Adultery is also known as infidelity or extra-marital affair which is certainly a moral crime and is been considered as a sin by almost all religions.

According to section 497 – whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be wife of another man, without the consent 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 or either description for a term which may extend to five years, or with fine, or with both. In such a case wife shall not be punishable as an abettor.

The essential ingredients are:

  1. Sexual intercourse between married woman and man who is not her husband.
  2. Woman must be married – sexual intercourse by a man, who is the wife of another man.
  3. Sexual intercourse must take place with woman consent .i.e.:-it must not constitute rape.
  4. Sexual intercourse with married woman must take place without the consent or connivance of her husband.

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 knocks or has a 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 finem or with both.

Essential ingredients are:
  1. Takes or entices away.
  2. Woman to be a married woman.
  3. The person enticing or taking away the married woman should have knowledge that she is the wife of another man.
  4. Taken from control of husband or person having care of her on behalf of her husband.
  5. Intention to have illicit intercourse.
  6. Conceals or detains any such woman.

Alamgir v state of Bihar, AIR 1969 SC 436
It was observed that whilst the wife is living with the husband, man knowingly goes away with her in such a way as to deprive the husband of his control over her, with the intent to have illicit intercourse, then it constitutes an offence within the section.

Section 498A – Cruelty by husband or relatives of husband.
Whoever being husband or relative of husband of a woman, subject such woman to cruelty shall be punished with imprisonment for term which may extend to three years and shall also be liable to fine.

Explanation: for purpose of this section cruelty means:
  1. Any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether physical or mental) of the woman; or
     
  2. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawfully demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
For safeguarding the interest of a woman against cruelty the Indian Penal Code, 1860 was amended in 1983 and S.498Aand S.304B was inserted which deals with “Matrimonial Cruelty” to a women by husband and his relatives and dowry death respectively. Section 113B was added to Indian Evidence Act, 1872, wherein it as provide that if it was shown that soon before the death of the woman she was subjected to cruelty or harassment by person in connection with demand for dowry, then it shall be presumed that such person who harassed the woman had caused the death of woman.

Inder Raj Malik v. Sunita Malik, 1896 It was held that word “cruelty” is defined in explanation which inter alia says that harassment of a women with a view to coerce her or any related persons to meet any lawful demand for any property or any valuable security is cruelty.

Reema Aggarwal v. Anupam AIR 2004 SC 1418
It was argued that 'husband' of 'second wife' who marries her during the subsistence of his earlier legal marriage, is not husband within the meaning of section 498A and the second wife, therefore, cannot invoke section498A for cruelty and harassment caused to her by him or his relatives. The appellant, Reema Aggarwal, who was harassed by her husband and his relatives for not bringing sufficient dowry, consumed poisonous substance .She admitted that she married him during lifetime of his first wife. Based on this fact her husband with others, was charged-sheeted under sections 307 and 498A.

Bibliography:
Books:
  1. Criminal law, PSA Pillai.
  2. Kenny's outline of criminal law.

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