Offences relating to Marriage

By | October 17, 2019
Offences relating to Marriage

Offences related to marriage are dealt with in Chapter XX, IPC. The offences enumerated in this chapter are in one way or the other related to infidelity in the institution of marriage. The Criminal Law (Second Amendment) Act, 1983 inserted Chapter XX-A which contained Section 498A that dealt with cruelty meted out to wife.[1]

MOCK OR INVALID MARRIAGES

Section 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage and Section 496. Marriage ceremony fraudulently gone through without lawful marriage.

  • Deceit or fraudulent intentions

Both Section 493 and Section 496 requires that deception by the accused to be exercised on the woman leading her to believe that they are lawfully married, although they are actually not.[2] Section 493 uses the word ‘deceit’ and the words ‘dishonestly’ and ‘fraudulent intentions’ occur in Section 496, all of which indicates that the man cheats the woman into making her believe that she is legally wedded to him whereas the man has complete knowledge that they this is not true.

The element of deceit and fraudulent intent must be concomitant to the marriage.[3] It is relevant to note here that Section 496 cannot be attracted where both the woman and the man genuinely commit to a marriage ceremony which is invalid and thereafter cohabitates.

The man cannot be held responsible for the invalidity of the marriage as he did not practice any deception at the time of marriage because he genuinely believed in the bonafide nature of the marriage ceremonies he had participated in as well.[4] The prosecution is required to establish the mens rea of the accused charged under these sections.

  • Causing of false belief

To establish the conviction of a man charged under Section 493, it must be proved that he deceived the woman that they are a lawfully wedded couple when he is completely aware that they are not and thereafter induce her to have sexual intercourse with him.

Merely deceiving a woman into believing that their marriage is lawful is not sufficient to constitute an offence under Section 493 and what is required is that the man after causing false belief of marriage must have sexual intercourse based this deceptive belief.[5] However, when a woman allows a man to have sexual intercourse with her being aware of the fact that their marriage, in reality, was invalid, then the accused cannot be convicted under Section 493.

A woman cannot file a complaint under Section 493 if she wilfully leaves her husband to undergo a marriage ceremony with another man without him persuading her for it.[6] The Hindu Marriage Act, 1955 mandates that in the period of pendency of an appeal against the decree of divorce, a man should not marry.

Nonetheless, a man cannot be charged under Section 496 if he marries a woman during the pendency of an appeal against a divorce decree if he had made her and her parents aware of such a decree. In such a case the suspicion of the existence of any fraudulent intention on the part of the man is ruled out.[7]

BIGAMY

Section 494. Marrying again during lifetime of husband or wife and Section 495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.

  • Existence of a Previous Marriage

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.

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.

  • Second marriage to be valid

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.[8]

The words ‘whoever marries’ mentioned in Section connotes to ‘whoever marries legally or validly’.[9]

Further, the provisions of bigamy cannot be attracted to the aid of an aggrieved when the spouse is keeping a concubine or a mistress as none of them has a status of a ‘wife’.

  • Second Marriage to be Void by Reason of First Husband or Wife Living

A second marriage is an offence only when it is performed during the subsistence of the first marriage or when the former spouse is alive. However, this provision is not applicable to the cases where the personal laws or the laws which govern the parties allow for it.[10]

  • 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 personal laws governing the parties. The primary issue is that certain religions prohibit polygamy whereas some permit it.

The landmark case of Sarla Mudgal, President, Kalyani v. Union of India,[11] the question of the guilt of a Hindu man whose first marriage was governed by the Hindu laws and later converts to Islam to marry more than once was discussed. The Apex was posed with the issue that whether the second marriage can be held valid which took place after the conversion of the husband from Hinduism to Islam. Additionally, can the act of performing a second marriage by the husband constitute an offence of bigamy under Section 494, IPC.

The Apex court laid down certain principles which have been enumerated hereunder:

  1. The marriage which has been solemnized under one personal law cannot be dissolved by applying another personal law to which one of the spouses converts to. The rights which are enforceable by the virtue of the parties being governed by one personal law cannot be extinguished by the conversion of one of the parties.
  2. The Hindu Marriage does not dissolve automatically when one of the spouses converts to another religion and Section 13(1) of the Hindu Marriage Act provides that the conversion to another religion serves as a ground for divorce. This means that the first marriage remains subsistent even after the conversion to another religion.
  3. Section 11 of the Hindu Marriage Act mandates that second marriage is void during the lifetime of spouse. Further, Section 17 provides that a person is guilty of the offence of bigamy if his/her second marriage is found to be void due to the reason that he performed this second marriage during the lifetime of their spouse.
  4. However, strictly speaking, a second marriage cannot be held to be invalid after the husband has converted to Islam, but it would be void qua the first wife, whose marriage is governed by the Hindu Marriage Act.
  5. The court further observed that such cases where the parties belong to different religions then such cases will be decided on the basis of equity, justice and good conscience. And from the perspective of equity and justice, a second marriage is void and Section 494 would come to the assistance of such an aggrieved.

The judgment rendered in Sarla Mudgal’s case was challenged and the Apex court delivered its decision with respect to the contentions through a common order in Lily Thomas v. Union of India.[12] The contentions raised were that the ratio laid down in the Sarla Mudgal’s case must be made applicable prospectively as it is violative of Article 20(1) and 25 of the Indian Constitution.

The review petitions were dismissed by the Apex court on the ground that in Sarla Mudgal’s case the court only interpreted the existing penal code and did not formulate any new law. Further, the ratio does not breach Article 25 as it does not anyone’s freedom of practice, propagation and conscience. Moreover, such an argument has been carved out with a sole purpose to shield the ones attempting to violate the penal laws.

  • Non-disclosure of the first marriage

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.

A punishment of simple or rigorous imprisonment of 10 years with an unspecified amount of fine as provided by Section 495. Section 495 could be construed to be an aggravated form of the offence of bigamy under Section 494.

ADULTERY

Section 497. Adultery

This colonial law has been decriminalised by a five-judge bench which declared that the law related to adultery as “archaic, arbitrary and unconstitutional”.

The landmark judgment was rendered to a petition filed by Joseph Shine in the case of Joseph Shine v. Union of India (WRIT PETITION (CRIMINAL) NO. 194 OF 2017). Dipak Mishra in his judgment has observed that “It’s time to say that a husband is not the master of his wife”.

CRIMINAL ELOPEMENT/SEDUCTION

Section 498. Enticing or taking away or detaining with criminal intent a married woman

  • Takes or entices away

‘Taking’ does not connote to ‘taking forcefully’ and simply implies to any kind of physical or moral influence, assistance to the wife to move away from the husband. The voluntary temptation of the woman or her willing act to accompany will not rule out the criminality attached to the act of the man.

The words ‘takes or entices away’ occurring in the Section would mean every form of elopement immaterial of the fact that intent was proposed by the man or woman. This section will not be applicable in cases when the wife has been ousted by the husband from their home or the wife has left their home and is living with some other man.[13]

  • Woman to be a Married Woman

The prosecution is required to prove that the woman was legally wedded before the accused can be convicted.

  • Knowledge

The person who is taking away or enticing the woman must have the proper knowledge or have reason to believe that the concerned woman is the legally wedded wife of another man.

  • Intention to Have Illicit Intercourse

The act of enticing or taking away a woman from the control of her husband must be brought in motion with the intention to make her have illicit intercourse with any person or conceal or detain her so that she can have intercourse alone.

If the act of taking away is with an intention other than the aforementioned then the accused has committed no offence under this Section.

  • Who can complain

Section 198 of CrPC lays down that no party other the ‘aggrieved’ party is entitled to lodge a complaint with regard to any offence contained in Chapter XX of IPC.

The proviso affixed to this rule further says that only in cases of the aggrieved being a person below the age of 18 years, sick, lunatic, an infirm or a woman whose customs do not allow her to appear in the public, can some other person after obtaining a leave from the court register a complaint. Additionally, if personnel working in the armed forces is the aggrieved party then he can authorize some other person to file a complaint.

With respect to Section 493 and 496, only a woman upon whom deceit has been practised by a man inducing her to believe that their marriage is lawful and thereafter cohabitated when in reality it is not can file a complaint against such a man. In case of an offence of bigamy provided under Section 494, IPC, not only the wife but her mother, father, sister, brother, daughter or son can also file a complaint on her behalf.[14]

The court in A Subash Babu v. State of Andhra Pradesh[15] has been of the view that even a second wife being an aggrieved party can file a complaint about offence of bigamy. Only a wife with whom second marriage is performed without revealing information about the former marriage can file a complaint to charge the accused under Section 495, IPC.

CRUELTY

Section 498A. Husband or relative of husband of a woman subjecting her to cruelty

Section 498A of the Indian Penal Code makes an act of administering cruelty by husband or his relatives on wife an offence. It prohibits torture by the husband or by 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.[16]

Prosecuting the accused in a case of cruelty becomes very tedious within the institution of marriage as not many women speak up against such sufferings and secondly, generally since cruelty is inflicted upon the wife in the confinements of a house obtaining witnesses to prove the prosecution becomes difficult.

At times there is no existence of direct assault and instead, due to mental torture, the woman is driven to an extent where she commits suicide. The Parliament in order to control such a situation introduced Section 498A and 304B, Section 113B and Section 174 in IPC, IEA and CrPC respectively.

Section 113B of Indian Evidence Act provides that if it is indicated that immediately before the death of the married woman she was inflicted with cruelty or harassment by a person in relation to dowry demands, then it must be automatically presumed that the death of the woman has been caused by the person who had harassed her.

The executive magistrates are mandated under Section 174, CrPC to make inquests in case a woman dies due to suicide or suspicious death within a span of 7 years of her marriage.

  • Cruelty by husband or relatives of the husband

Section 498A only restricts the conviction of cruelty if it has been inflicted upon the wife by her husband or his relatives. The definition of the term ‘relative’ has not been provided anywhere in IPC, yet following the case laws, it can be construed that the word ‘relatives’ would include parents, brothers and sisters of the husband. A friend even if he is close to the family will not be covered under the purview of this Section.[17]

In the case of Reema Agarwal v. Anupam,[18] a second wife cannot be protected under the Section 498A of IPC as the husband of such second wife cannot be covered within the meaning of ‘husband’ used in the Section during the subsistence of the first legal marriage. And thus any cruelty meted out to the second wife by the husband cannot be punished in the courts of justice.

Reema Agarwal committed suicide after consuming poison post the mental torture which was inflicted upon her by her husband and his relatives for not meeting their dowry demands. The trial court exonerated him and observed that Section 498A can be applied when the condition of a valid marriage is sufficed. The High court was also supportive of this view. However, the Apex court rejected the contention of the trial court and the High court and overruled their decisions by citing the following:

“There could be no impediment in law to liberally construe he words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage and thereby assumed by himself the position of husband to live, cohabitate and exercise the authority as such husband over another  woman.”

In another case of John Idiculla v. State of Kerala,[19] the High court of Kerala was posed with three very important issues relating to the interpretation of the terms ‘the husband or the relative of the relative of the husband’ mentioned in the Section 498A. Hereunder those three issues:

  1. For the purpose of Section 498A, can the second wife be construed to be a relative of the husband if the second marriage takes place during the subsistence of the first marriage
  2. If yes, then under what circumstances
  3. Can the first wife avail protection under Section 498A implicating the second wife for meting out cruelty on her

The High court was of the view that a second wife has to be considered to be a relative for the purpose of Section 498A and hence any cruelty meted out to the first wife by her can make her guilty of the offence of cruelty. The court justified its observation by saying that:

“Non-existence of a strictly legal marriage cannot be made a ground for an offending second wife to run away. The invalidity of the marriage can under no circumstances be granted as a license to her to harass none other than a legally wedded wife.”

Further, another landmark judgment rendered by the High Court Jharkhand in the case of Sunita Jha v. State of Jharkhand,[20] held that a woman in a live-in relationship with the husband of the wife can also be guilty of an offence committed under Section 498A.


[1] Act No 46 of 1983

[2] Re Abdul Khader [1970] Cr LJ 1321 [Mad]

[3] KAN Subramanyam v. J Ramalakhsmi [1971] Mad LJ [Cr] 604

[4] Raghunath Padhy v. State of Orissa AIR 1957 Ori 198

[5] Moideen Kutty Haji v. Kunhikoya AIR 1987 Ker 184

[6] Dr AN Mukerji v. State AIR 1969 All 489

[7] Kailash Singh v. Priti Pratihar [1982] Cr LJ 1005 [Raj]

[8] Gopal Lal v. State of Rajsthan AIR 1979 SC 713

[9] Abdul Hamid v. Smt Asghari [1973] Cr LJ 1710 [All]

[10] Smt Priya Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 SC 1153

[11] AIR 1995 SC 1531

[12] AIR 2000 SC 1650

[13] Norman O’Conner v. Emperor 1935 Cal 345

[14] Dr. Manish Das v. State of Uttar Pradesh [2006] 6 SCC 536

[15] AIR 2011 SC 3031

[16] BS Joshi v. State of Haryana[2003] Cr LJ 2028 [SC]

[17] Anil Kumar v. State of Punjab[1997] 2 AI Cri LR 638 [P&H]

[18] AIR 2004 SC 1418

[19] [2005] Cr LJ 2935 [Ker]

[20] [2010] 10 SCC 190


  1. False Evidence and Offence against Public Justice(Opens in a new browser tab)
  2. Offences relating to Religion(Opens in a new browser tab)
Shreya Sahoo
Author: Shreya Sahoo

Shreya is a law student studying at the National Law University, Odisha. She is a good researcher and enjoys reading. She is interested in Intellectual Property Rights and International Law. Additionally, in her spare time, she also enjoys cubing.

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