OFFENCES RELATING TO MARRIAGE UNDER IPC

OFFENCES RELATING TO MARRIAGE UNDER IPC

Author : Taniya Tejan

INTRODUCTION

In India marriage is considered as very sacred and the women are worshipped like a god but now a day’s we have seen that in every 2 second we hear the news like an assault with women, rape of women, stalking, dowry death, sexual harassment & acid attacks etc. this is very inhuman for the nation that the crime is increasing day by day against them and the women are very insecure everywhere whether they are at home, outside or workplace the crime follows every step with them but with the help of our constitution and Indian penal code the culprit are easily captured by police and flexible laws and rules are also made for their protection which also helps them to give equality as the men and equal treatment for all.

Under Indian penal code of Chapter XX talks about the offences relating to marriage section (493 -498A) which takes away the sanctity from the holy institution of marriage and it also shows the inability of laws to protect the interest of married wife.

There are several offences relating to marriage.

1. Invalid marriage or mock marriage (Sec 493 &496).
2. Bigamy(Sec 494&495)
3. Adultery(Sec497 )
4. Criminal Elopement/Seduction(Sec498 )
5. Cruelty(Sec498A )

INVALID MARRIAGE  OR MOCK MARRIAGE  (SEC 493&496).

SECTION 493

This section states that every man whether he is married or unmarried by cheating persuade women for cohabitation or sexual intercourse and the women believe that she is lawfully married to him or in reality, she was not and she submits herself to him as his wife then that men shall be punished with imprisonment of either interpretation of the law or which may extend to ten years and shall also be liable to fine. The offence under this section can be punished as a rape u/s 375 clauses (4).

INGREDIENTS

1. Deceit or causing false belief.
2. Cohabitation or sexual intercourse with the person causing such believes.

SECTION 496

This section states that any men or women who have an intention to deceit or by fraud induced women or men to go through the ceremony of marriage which he/she knew that no valid marriage but still performs that ceremony of marriage and one party does not know about the fact that the marriage was done by fraud or cheating then he /she shall be punished with imprisonment either according to law or which may extend to seven-year and shall also be liable to pay fine.

INGREDIENTS

1. The intention of dishonest or fraud or to deceit.
2. One party was aware of the fact that the marriage was not lawful or not valid.

BIGAMY (SEC 494&495)

BIGAMY

When men or women perform second marriage during the subsistence of the first marriage and it is illegal in India and relationship arising from the same marriage is not valid. Bigamy is an offence under Indian penal code only when the husband or wife is alive and it was also offence if it was performed by the consent of first husband or wife

SECTION 494

This section applies to all Hindus, Christians, and Parsis whether they are male or female. But in the case of Muslim people according to their laws, the male can have four wives but the female are not permits to have more than one husband.

It says that any husband or wife perform marriage when their spouse is alive or during the lifetime of first marriage or with the consent of their spouse or with the consent of their new partner is an offence under this section and whoever commits an offence under this shall be punishable with imprisonment either by describing by the law or which may extend to seven years and shall also pay liable to fine.

There are few exceptions to this section are-

1. When the competent court declared the first marriage was void.
2. When the husband or wife continuously absent from seven years and shall not hear anything whether they are alive or not and before the second marriage takes place, he/ she has to give information about his/her first marriage and the second partner should be aware of the fact or have knowledge.

SECTION (495)

This section says that whoever hide information about their first marriage from the second marriage or does not reveal the truth of his marriage, then he/she shall be punished with the imprisonment which described by law which may be extended to ten years and shall also be liable to pay fine.

•  Adultery(Sec497 )

Adultery means the sexual intercourse or physical correlation between the married person and other than that who was not his lawful spouse even though whether the women are married whose husband consent to it or his without consent, unmarried or with a widow then he shall be deemed as he committed an offence under this section against a husband in respect of his wife which termed as an offence of adultery.

 This section punishes the person whoever has sexual intercourse with a person who he knows about the fact that, the wife of other person or without the consent of her husband then such sexual intercourse is not amounting to the offence of rape but he is guilty under the offence of adultery and he shall be punished under this section with imprisonment according to prescribed law and which shall be extended for the term of 5 years or with fine or with both. But in this case, the wife shall not be liable under this offence and shall not be punished as an abettor.

CASES

Yusuf Aziz v. State of Bombay, A.I.R 1945

In this case, the appellant was prosecuted under section 497 and as soon as the complaint was filled he approaches to the High court of Bombay and there he contended that the adultery law violates the fundamental right of equality under Article 14 of Indian constitution. Then the Supreme Court held that section 497 of IPC is valid and it does not give license to the women to commit adultery.

But after the case of  Joseph shine v. union of India, A.I.R 2018 this section has been decriminalized and the law relating to the adultery as “unconstitutional”.

JOSEPH SHINE V. UNION OF INDIA, A.I.R 2018

FACTS ;-

The fact of the case was Mr. shine was a Keralite and he filed PIL under article 32 of the Indian constitution for challenging the constitutionality of the offence of adultery which was given under section497 of IPC. He contended that this section discriminates among the men and women for having an extra-marital affair and treating a woman like a victim. It is worthy that an offence was committed by both men and women but the men are only liable for a criminal offence and the women were not responsible or liable they are absolved.

ISSUES ;-

1. Whether section 497 of the Indian Penal Code is constitutionally valid?
2. Whether section 198(2) of Code of Criminal procedure (crpc) violates the fundamental right of article 15,16 and 21?
3. Whether section 497 has an excessive penal provision which needs to be decriminalized?

JUDGEMENT

This case has been decided by five judges bench and HON’BLE JUSTICE Dipak Mishra says that now the husband is not the master of his wife.

1. This section does not provide the neutrality or same platform to punish the culprit for the offence of adultery and it does not prosecute a woman but it does prosecute the men only but as we see both of them committed the crime but the punishment was given based on gender which is the violation of Article 14 and also sec 497 does take the shadow under article 14 of Indian constitution as it was unreasonable and arbitrary.
2. The true purpose of state legislation was to uplift the women and empowers in the socio-economic sphere under article15 (3). But legislation which takes away the right of women to prosecute then that legislation was not beneficial legislation.
3. Article 21 of Indian constitution an invasion of privacy by the state must be justified o the basis of valid law.

Justice held in the case of K.S Puttaswamy & Anr v. Union of India & anr invasion of three postulates.

1. Legality- which postulates the law

2. Need- legitimate state interest

3. Proportionality-rational nexus between the object and the means of adopting.

Section 497 fails in term of these postulates and must be required therefore to stuck down.

1. To criminalize definite conduct is to declare that it’s a public wrong which might justify public censure, and warrant the utilization of criminal sanction against such hurt and wrongdoing.

2. The autonomy of an individual to create his or her decisions with relevancy his/her gender within the most intimate spaces of life ought to be shielded from public censure through criminal sanction. The autonomy of the individual to require such selections, that are strictly personal, would be repulsive to any interference by the state to require action supposedly within the best interest of the individual.

Decision

1. Section 497 of IPC becomes unconstitutional because it violates the article mentioned under Indian constitution i.e article 14, 15 & 21.
2. Section 198 (2) of the code of criminal procedure (CRPC) which contains the procedure related to the offence of adultery is shall be unconstitutional.

SECTION 498

This section states that whoever takes or entices away any women from her husband or guardian with wrongful intention or to have sexual intercourse shall be punishable under this section with the imprisonment of 2 years or fine or both.

SECTION 498A

This section states any type of cruelty done by her husband or his family which makes his wife try for suicide or treating her very badly or demanding for dowry or anything related to dowry then shall be punished for the term or which may be extended to three years and also liable for fine.

This section also applies to the before seven years of marriage and after seven years of marriage but there is time limitation provided by code of criminal procedure act under section 464 that the complaint should not be delayed more than 3 years.

Cases

 RAJESH SHARMA v. STATE OF U.P, A.I.R 2017

In this case, the Supreme Court give direction to prevent from misuse of this section which was further modified in the case of social auction forum Manav Adhikari v.union of India it includes that-

1. A complaint under section 498-A or offence related to this section was investigated by designated investigated officers of the area.
2. And if the matter for the settlement reached between the party then it is up to them whether to approach a high court under section 482 of CrPC for quashing the proceedings.
3.   If the bail application was filed with a minimum one day’s notice by the complainant the same may be decided as the same day. And the recovery of the dowry item may not / maybe denial of its bail. Just to protect the right of wife or minor child.
4. In respect, if a person is from out of India then the issuance red corner notice should not be routine.

Conclusion

The offences relating to marriage are given protection and the right of women to file a complaint or if anyone treats them inhume by his husband or by his relatives. And it also tries to stop the crime which harms the women like harassment, demanding of unlawful property, dowry death etc.