Offences related to Marriage and Cruelty by Husband or his Relatives - section 493 and 498A

Abstract

Chapter XX of Indian Penal Code, 1860 provides punishment for offences relating to marriage under (section- 493 to 498) and Chapter XXA of Indian Penal Code,1860 provides punishment for Cruelty by husband or by relatives of the husband under (section- 498A).

This Article is featuring about the offences related to marriage along with their sections and its classifications and discussed some case laws for better understanding.

Under Chapter XX of Indian Penal Code, 1860 which is offences related to marriage which is divided into four categories;-

1) Mock or Deceitful/ Invalid Marriage (sec. 493&496)

2) Bigamy (sec.494&495)

3) Adultery (sec.497)

4) Enticing, taking away or detaining a married woman, with criminal intent (sec.498)

Under Chapter XXA of Indian Penal Code, 1860 there is only one section- 498A which is Cruelty by Husband or Relatives of Husband.

Firstly, we will discuss Chapter XX of IPC, 1860 i.e. Offences related to Marriage (section- 493to498):

1) Cohabitation caused by a man deceitfully inducing a belief of lawful marriage(sec.493)- Any woman who is not lawfully married, but he dishonestly convinces a woman that she is lawfully married to him and with this belief she enters into sexual intercourse or to cohabit with him in that faith.

This is a non-cognizance, non-bailable offence and it is triable by Magistrate of first-class and it is non-compoundable i.e. the matter cannot fit for the settlement.

Essential Ingredients of sec.493 are-

1. Accused must convince a woman.

2. A woman should not lawfully be married to the man.

3. A woman should believe that she was lawfully married to him.

4. There should be sexual intercourse.

Case- Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC here, a person who was half English, half Asiatic by blood, calls himself a Hindu and by the fraud causes a Hindu woman to marry with him in this way woman believes so and enter into sexual intercourse with him. Here, the man has done wrong. Here, man has done deception.

Live-in partner is the exception of this section.

Apex Court on 5th May 2015 held that though the couple is unmarried, but living together as a husband-wife, then it will be assumed that they are a legally married couple.

If there is any break in a relationship then the woman is entitled to get maintenance and the children who are born from such relationship is also entitled to get maintenance and is eligible to inherit the property of the man after the death of her live-in partner.

Supreme Court in Dhannulal v. Ganeshram, 2015(4) scale 613 held that the woman is eligible to inherit the property after the death of her partner and they will be presumed married and the children born from the live-in relationship they are legitimate.

2) Marriage Ceremony Fraudently went through without Lawful Marriage(sec.496)- When a person knows that he is not going through a lawful marriage then also with a fraud intention or dishonestly go through the marriage ceremony then he/she shall be liable for fine and shall be punished with imprisonment for a term which may extend to 7 years. It is non-cognizable and bailable.

Complaint filed by the first wife will not falls in section 496. She can file a complaint under sec.494&495.

Courts have no authority to take cognizance of an offence which is punishable under sec.496 except when there is a complaint made by aggrieved party for such offence i.e. the deceived girl or her parents.

In sec.493&496, the man-induced the woman that she is legally married to him, but the man was familiar with the fact that it is not true.

The major difference between sec. 493&496-

In sec. 493 there is a fraud from the man, and cohabit or sexual intercourse resulting from the fraud. In this case, the offence can only be committed by man. But in sec.496 there is no requirement of cohabitation or sexual intercourse. But a dishonest or fraudulent intention to perform a marriage ceremony when he/she knows that the marriage is not lawful. In this case, the offence can be committed by man or woman.

BIGAMY is the act in which a person marries another person, while the first marriage is in a subsistence and when the first husband/wife is alive. It is an offence and is called bigamy.

In Hindu Law, marriage is sacrosanct, there is a holy union between two persons. Before the Hindu Marriage Act, 1955 polygamy was very common. But after the Hindu Marriage Act, 1955 scenario has changed.

Sec.5 of Hindu Marriage Act,1955 states that marriage is valid only when both the parties don’t have a living husband/wife at the time of marriage.

Sec.11 of Hindu Marriage Act, 1955 declares that if any person violates sec.5 then the marriage will declare as null and void.

Sec.17 of Hindu Marriage Act,1955 provides that if either of the parties has a living spouse at the time of marriage, shall be punishable under sec.494&495 of IPC.

But in Muslim Law, polygamy is allowed in their personal law. The Shariat Act, 1937 is the law of land for Muslims. They are governed by the Quran which permits a man to mary, up to 4 women if he can take care of four of them. He can marry four of them at the same time.

All religions and personal laws forbid Bigamy except Islam.

3) Marrying again during lifetime of husband or wife(sec.494)- When any person marries, having a spouse living at that time. In such a case marriage is declared void and shall be punished with imprisonment which may extend to 7 years and shall be liable to fine. It is non-cognizable and it is bailable. It is triable by Magistrate of the first class. It is compoundable by the husband or wife of the person so marrying with the permission of the court.

Exception-

i. The first spouse is not anymore.

ii. The first marriage declared as void by the court of competent jurisdiction.

iii. The first marriage is dissolved by divorce.

iv. The first spouse is absent or not heard of frequently for 7 years. The party marrying must inform about the fact to the person he /she marries.

If he/she doesn’t disclose the fact then here a complaint can be filed under sec.415 of IPC for cheating.

This provision of the bigamy of IPC sec.494&495 will not apply to the member of Schedule Tribe. They have their customary law which applies to Schedule tribes.

Sec.494 of IPC does not apply to Mohammedan Males, they are allowed to marry up to 4 wives, but it applies to Muslim females, Hindus, Parsis and Christians of sex. That’s why there is a need for the Uniform Civil Code i.e. to govern every religion with the same law.

Case- Abdul Ghani v. Azizul Huq(1911) In this Muslim Woman marry during her iddat period which is of 4 months after getting a divorce. It was held that she was not found guilty of sec.494&495.

4) Section-495 A person who commits bigamy under sec.494 of IPC by concealing the first marriage from the person with whom he/she gets into a contract of the second marriage.

The criminal shall be punished with simple or rigorous imprisonment which may extend up to 10 years and liable to fine. Non-cognizable, bailable and it is triable by Magistrate of first-class, Non-compoundable. Courts have no authority to take cognizance of an offence which is punishable under sec.495 except when there is a complaint made by aggrieved party for such offence i.e., the deceived girl or her parents.

Essential Ingredients of sec.495 are-

1. Accused had married already.

2. First marriage must be lawful.

3. The first spouse must be alive at the time of marriage.

4. Accused Married another person.

5) Adultery(sec.497)- When a man has sexual intercourse with the wife of another person and he knows about the fact, without the consent of her husband. Such intercourse offence will not amount to rape but is not guilty of adultery. He shall be punishable with imprisonment which may extend to 5 years or with fine or both.

The woman with whom the man has done sexual intercourse will not be punishable as an abettor.

Who can file a complaint?

Woman’s husband with whom adultery is performed can only file a complaint. In the absence of husband of aggrieved woman, then if the court allows some other person who takes care of the women to file a complaint on the behalf of aggrieved woman’s husband(section-198(2) of cr.pc).

Constitutional Bench of Supreme Court struck down sec.497 which penalizes adultery-

• Section 497 violates Article 14 (equality before law).

• Violation of Article 15(1) (prohibition of discrimination).

• Violation of dignity of woman and Article 21 (right to life).

• Violation of rights to privacy and the right to choose.

• Opposed to “Constitutional Morality”.

The Supreme Court held that the husband is not master of the wife.

6) Enticing or taking away or detaining with criminal intent a married woman(sec.498)- When a person induces or takes away any woman knowing the fact that woman is of another person without the consent of woman’s husband or any person who is having care of her on behalf of his man with the criminal intention to cohabit or to sexual intercourse with the woman or hide or detain with such intention, the person shall be punished with imprisonment which may be extended to 2 years or with fine or with both.

It is non-cognizable, bailable, triable by any magistrate. The offence is compoundable by the woman and by a woman’s husband.

Chapter XXA Cruelty by Husband or relatives of husband(sec.498A)-

When the husband of a woman or the husband’s relatives, does cruelty with a woman then they shall be punished with imprisonment which may extend to 3 years and shall also be liable to fine.

Cruelty means-

a) Any act which is done by the husband or his relative which causes serious injury or life-threatening, limb, or mental or physical health or doing any act which pushes a woman to commit suicide.

In the case of Amarjit Singh v. the State of Punjab, 1939 the husband has the habit of drinking and daily comes late at home and after that husband beats his wife which was the act of cruelty.

b) Harassing a woman or her family member to meet up with any demand which is not legally allowed i.e. dowry or any security or property or frighten or a woman on the failure of such demand by her or any person of her relative.

However, some woman misuses this section putting the wrong allegation on the husband and his relatives.

The Essential Ingredients of sec.498A of IPC were discussed in Swetha v. State (2009),

1. A woman must be married. In this section, a marriage can be unlawful also.

2. There must be cruelty or harassment of a woman.

3. The cruelty must be shown by an act which either by a woman’s husband or my husband’s relatives.

According to section 113A of the Indian Evidence Act-

When a woman commits suicide under sec.498A within 7 years from the marriage then here the court may presume by seeing all the circumstances of the case that the offence has been done by abetting to wife by her husband or by a relative of her husband. The Burden Of Proof will be on the husband or his relatives.

In the case of Babaji Charanwari v. state, it was held that if no evidence is shown of cruelty or harassment which was done before the incident then the court cannot presume that the act is done by abetment by the husband or his relatives.

Courts have no authority to take cognizance of an offence which is punishable under sec.498A except when a police report of such offence or when there is a complaint made by the aggrieved party or by her parents, brother, sister or even any person who is filing a complaint related to the aggrieved woman by blood, marriage or adoption with the prior permission from the court.

If the case is pending in any criminal court filed under sec.498A then the appellant has the right to ask for reliefs under sec.18 to 22 and for interim relief under sec.23 of Domestic Violence Act.

Who are the relatives of the husband?

In Vijeta Gajra v. State(NCT of Delhi),2010 (11) SCC 618 that the relative of the husband can be a person by blood, marriage or adoption but a girlfriend or concubine cannot be a relative of husband.

Conclusion

The crimes against women are increasing day-by-day. There are many provisions which protect the women even Constitution of India protect the women in many ways. Somehow, women are taking undue advantages of their rights. Under sec.498A, a woman puts fake allegation on the husband or his relatives for cruelty, which is wrong. Rights are given for the benefit of one’s life not to misuse them.


Credit: Apoorva Begani

Clg name: Renaissance Law College


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