OFFENCES RELATING TO MARRIAGE
1. What are the offences relating to marriage under the Indian Penal Code?
Introduction
In our old, great nation a woman is the personification of a goddess, a symbol of respect and devotion to the gods. We have all been brought up in a way that commands the highest honor and respect for the fairer sex. Yet, unfortunately, the latest statistics do not reflect this but in fact, demand introspection.
Offenses relating to marriage.
Chapter XX (section 493- 498), IPC, deals with offenses relating to marriage. All these offenses deal with infidelity within the institution of marriage in one way or another. Chapter XX-A, containing only one section (s 498A) dealing with cruelty to a woman by her husband or his relatives to coerce her and her parents to meet the material greed of dowry, was added to the IPC by the Criminal Law (Second Amendment) Act 1983.
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The following are the main offenses under this chapter:
Mock or invalid marriages (ss 493 and 496);
Bigamy (ss 494 and 495);
Adultery (s 497);
Criminal elopement (s 498);
Cruelty by husband or relatives of husband (s 498A)
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.
Section 494-Marrying again during lifetime of husband or wife
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 section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such 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.
The important ingredients are:
deceit or fraudulent intention
causing of false belief
cohabit or have sexual intercourse
Section 495-Same offence with concealment of former marriage from person with whom subsequent marriage is contracted
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 essential ingredients are:
existence of a previous marriage
second marriage to be valid
second marriage to be void by reason of first husband or wife living
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Section 496-Marriage ceremony fraudulently gone through without lawful marriage
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.
The essential elements of both the sections i.e. 493 and 496, is that the accused should have practiced deception on the woman, as a consequence of which she is led to believe that she is lawfully married to him, though in reality she is not. In s 493, the word used is ‘deceit’ and in s 496, the words ‘dishonestly’ and ‘fraudulent intention’ have been used. Basically both the sections denote the fact that the woman is cheated by the man into believing that she is legally wedded to him, whereas the man is fully aware that the same is not true. The deceit and fraudulent intention should exist at the time of the marriage. Thus mens rea is an essential element of an offence under this section.
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.
The essential ingredients are:
sexual intercourse
woman must be married
knowledge
consent or connivance of husband
should not constitute rape
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 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.
The essential ingredients are:
takes or entices away
woman to be a married woman
knowledge
taken from control of husband or person having care of her on behalf of her husband
intention to have illicit intercourse
conceals or detains such women
Section 498A-Cruelty
Matrimonial Cruelty in India is a cognizable, non bailable and non-compoundable offence. It is defined in Chapter XXA of I.P.C. under Section 498A as
Husband or relative of husband of a woman subjecting 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.
For safeguarding the interest of a woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860 was amended in 1983 and S.498A was inserted which deals with ‘Matrimonial Cruelty’ to a woman. The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A was been added to the Indian Evidence Act to raise presumption regarding abetment of suicide by married woman. The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband.
Section 113-A of Indian Evidence Act, reads as follows:
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
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.
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Essential ingredients
Death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
Death should have occurred within seven years of her marriage
The woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.
Cruelty or harassment should be for or in connection with the demand for dowry.
Cruelty or harassment should have been meted out to the woman before her death.
Expression ‘soon before her death’
The expression ‘soon before her death’ used in the substantive section 304B, I.P.C. and Section 113B of the Evidence Act is connected to the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination of the period which can come within the term ‘soon before’ is to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
Applicability
In the case of Vadde Rama Rao v. State of Andhra Pradesh,[xx]it was argued that the husband or any of his relative could be guilty of the offence only if he or she directly participated in the actual commission of the offence. This contention was rejected by the Andhra Pradesh High Court. It observed that in its real import, section 304B would be applicable if cruelty or harassment was inflicted by the husband on any of his relative for, or in connection with demand for dowry, immediately preceding the death by bodily injury or by burning.
Burden of Proof
The prosecution under section 304B cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and that it was caused “soon before her death”. The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition Act, 1961. There are three occasions related to dowry, i.e., before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within ambit of “dowry”.
Section 304B and Section 498A – Distinction
There is a clear distinction between section 304B and 498A of the Indian Penal Code. Now, under section 304B it is a dowry death that is punishable and such death should have occurred within seven years of marriage and this period of limitation is not there in 498A.
Section 294- Obscene acts and songs
Whoever, to the annoyance of others,
(a) Does any obscene act in any public place, or
(b) Sings, recites or utters any obscene song, ballad or words, in or near any public place,
Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
Section 294 intends to promote public decency and morality. It can be understood as preventing ‘eve teasing’ in general sense. In order to secure a conviction under this section, the prosecution has to prove two particulars, namely:
the accused has done an obscene act in public place or has sung, recited or uttered any obscene songs or words in or near any public place and
has caused annoyance to others.
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Offences Outraging the Modesty of a Woman
“Modesty is not only an ornament, but also a guard to virtue…”
We may think that the position of women has changed in our society, especially in metropolitan cities, but that is nothing but a myth. We might have progressed but what’s the point in boasting of our growth-story if it hasn’t taught us to respect the modesty of women?
The offence of outraging the modesty of a woman has been dealt with in the Indian Penal Code under Section 509 and Section 354, which is an aggravated form of the offence mentioned under Section 509.
Section 509
This section reads-
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
On a close reading of the section we can infer that, the basic constituents of the offence under Section 509 are-
Intention to insult the modesty of a woman.
The insult must be caused-
By uttering some words, or making some sound, or gesture or exhibiting any object so as to be heard or seen by such woman, or
By intruding upon the privacy of such woman
Section 354
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The essential ingredients of the offence under this section are:
A woman was assaulted or criminal force was used against her;
The accused intended to outrage her modesty or knew that her modesty was likely to be outraged
Section 354A- Sexual Harassment
(1) The following acts or behaviour shall constitute the offence of sexual harassment
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) A demand or request for sexual favours; or
(iii) Making sexually coloured remarks; or
(iv) Forcibly showing pornography; or
(v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
(2) Any person who commits the offence specified in clause (i) or clause (ii) of sub-section (1) shall be punished with rigorous imprisonment which may extend to five years, or with fine, or with both.
(3) Any person who commits the offence specified in clause (iii) or clause (iv) or clause (v) of sub-section (1) shall be punishable with imprisonment of either description that may extend to one year, or with fine, or with both. Assault or use of criminal force to woman with intent to disrobe.
Section 354B
Whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.
Section 354C- Voyeurism
Whoever watches, or captures the image of, a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Section 354D -Stalking
(1) Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking: Provided that the course of conduct will not amount to stalking if the person who pursued it shows––
(i) that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or
(ii) That it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) That in the particular circumstances the pursuit of the course of conduct was reasonable.
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Rape
“Rape is the highest in the class of all indignities, one which can never be fully righted and that diminishes all humanity.”-Supreme Court of California in M v. City of Los Angeles
The above quotation doesn’t even come close to the horror of a heinous crime like rape which tears the victim apart, both in physical and mental measure. The brutality of such an act is so sharp and deep that the victim is unlikely to completely shake off the trauma throughout their lives.
Rape is a type of sexual assault initiated by one against the other’s consent with the purpose of forces sexual intercourse. In India, rape has been the subject of definition under Section 375 of the Indian Penal Code with its aggravated forms given under Section 376 of the I.P.C.
For a nation which reveres its women as goddesses, fresh crime statistics fail to reflect the very same. We have a case of rape every 29 minutes and a case of molestation every 15 minutes, which is inhuman to put it mildly for a divine nation such as ours.
Rape Under The Indian Penal Code
Rape, its definition, elements and punishments have been given under Section 375-376. These sections were substantially amended on the recommendations of the Justice J.S. Verma Committee that was setup in wake of the 16 Dcember 2012 gang rape case. The amendment was made to make the provisions more incluisve and at the same time award a stricter punishment.
Under Section 375, Rape which derives from the Latin word ‘rapio’ meaning ‘to seize’[xxxviii] is defined as any act of penetration by penis or another body part or object, or any manipulation the woman’s body parts under the following circumstances-
Need to Streamline Rape Laws
With a rising number of cases of rape, the public opinion in favour of death for rape convicts is higher than ever. Yet, members of the legal fraternity must see sexual offences like Rape through a legal perspective and not through the prism of public opinion. Finally, the question remains if the punishment is adequate in cases of rape under Section 375 and 376. This has been debated upon widely because there has never been a strict interpretation of the gravity of a crime like Rape or of the accused in such a crime. For example, in the United States of America, people convicted of sexual offences are given psychiatric and therapeutic help as they are viewed as ‘sick’ and not just as one of the crowd of prisoners in India’s jails.
The rising tide of suggestions to streamline Rape laws under the Indian Penal Code include,
Incestuous rape or rape by a person within the family must be made a statutory offence given the fact that cases of incest have risen over the years.
In India, most cases of rape either go unreported because of the inevitable social stigma that gets attached to the victim or are dismissed where the accused are acquitted due to lack of evidence or proof. This is largely because here, a case of rape includes the careful dissecting of a woman’s character and chastity.
“Perhaps it is the only crime in which the victim becomes the accused and, in reality, it is she who must prove her good reputation, her mental soundness, and her impeccable propriety.”
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