Offences against marriage have been dealt with in Chapter XX of the Indian Penal Code. This Chapter deals with offences relating to marriage and consists of six Sections 493- 498. Here we are discussing 2 parts of offence namely;
- Bigamy.(Section 494):
“Whoever has a husband or wife who lives, marries in any case in which that marriage is void because it takes place during the lifetime of that husband or wife, shall be punished with the imprisonment of either description for a term of up to seven years and shall be liable for fines as well.”
Exception to this section:
- The first marriage is declared to be void by the court of competent jurisdiction.
- The husband or wife of the first marriage is continuously absent for a period of 7 years and have not heard as being alive within that period of 7 years.
- The person contracting such subsequent second marriage had informed the above facts to the person with whom he or she is married.
In Bhaurao Shankar Lokhande’s case the accused husband was acquitted merely because the complainant could not prove the existence of a custom prevalent in their community which dispensed with the performance of two ceremonies- invocation before the sacred fire and satpadi, and since these two ceremonies were not performed the offence of bigamy was held to be not made out.
The Hon’ble Karnataka High Court in the case of Ram Singh v. R. Susila Bai And Anr relied on the afore-mentioned judgement and gave the accused husband benefit of doubt on the ground that the performance of two essential ceremonies- invocation before the sacred fire and satpadi- were not proved by reliable evidence.
- Adultery.(Section 497)
‘Whoever has sexual intercourse with a person who is and who knows or has reason to believe that he is another man’s wife, without that man’s consent or connivance, is guilty of the crime of adultery and shall be punished with the imprisonment of either form for a term of up to five years, or with fine, or with both. The wife shall not be disciplined as an abettor in such a situation.
- Proof of adultery
- Circumstantial evidence
- Contagious disease in private parts
- Giving birth to child and proof of non-access of husband
- Admission by party
- Artificial insemination and adultery
- Not adultery
- Parties should be present physically
- Some degree of penetration of the female organ by the male organ
- Does not required of delivery of male seed in the female ovum
In October 2017, Joseph Shine, a non-resident Keralite, filed PIL under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
Section 497 IPC criminalised adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Section 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sections 497 and 498 IPC.
Advocate Jayna Kothari, Executive Director of CLPR, represented the intervenor Vimochana. She assailed the provision which categorised adultery as an offence by invoking the fundamental right to privacy, as recognised by the Supreme Court in Puttaswamy case. She argued that the right to intimate association is a facet of privacy which is protected under the Constitution.
Section 497 was unconstitutional as the very basis for criminalising adultery was the assumption that a woman is considered as the property of the husband and cannot have relations outside of marriage. The same restrictions, however, did not apply in case of the husband. Section 497 violates right to privacy as well as liberty of women by discriminating against married women and perpetuating gender stereotypes.
On 27.07.2018, a 5 Judge Bench of the Supreme Court unanimously struck down section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.
Cruelty by husband or relatives of husband (Section 498-A)
“Someone who is a husband or a relative of a woman’s husband shall be punished with imprisonment for a period of up to 3 years and shall also be liable for fines”.
- Russell vs Russell 1897AC (395)
Conduct of such a character as to have caused danger to life, limb, or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.
Types of Cruelty
- Mental Cruelty
- Mental pain and sufferings to the other spouse
- Type of life
- Economic and social conditions
- Their culture and human values
- Various instances of cruelty
- False accusation of adultery
- Attempt and threat to commit suicide
- Demand of dowry
- False criminal charges
- False and baseless complaints to the employer
- Pulling of private parts
- Abortion without consent of husband
- Insulting before outsiders
- Using filthy language
- Neglect towards children
- Ill treatment to in laws
- Refusal to have sexual intercourse
Every harassment does not amount to “cruelty” within the meaning of Section 498-A. For the purpose of Section 498-A, harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under Section 498-A IPC, State of A.P. v. M. Madhusudhan Rao,
Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by means of a definition because cruelty is a relative term. What constitutes cruelty for one person may not constitute cruelty for another person, G.V. Siddaramesh v. State of Karnataka,
The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs, Gananath Pattnaik v. State of Orissa.
Section 498A AND 304B, IPC – Comparison
Section 498A deals with the cruelty which is inflicted by the husband and his relatives upon the wife, driving her to take her life or cause grievous hurt to her limb or health-threatening her life. The torture could be both mental and physical. Further, any coercive demands in relation to dowry are also cruelty.
Section 304B deals with ‘dowry death’ where the death of a woman by bodily injuries or burns or where such death took place under normal circumstances, within a span of 7 years of marriage, where the husband or his relatives inflicted the wife with cruelty or harassment in relation to demands for dowry.
In Pawan Kumar v. State of Haryana the Hon’ble Supreme Court has laid down that the ingredients necessary to attract Section 304-B IPC are:
- Death of a woman is either by burns or by bodily injury or otherwise than under normal circumstances;
- It should be within seven years of marriage;
- It should also be shown that soon before her death she was subjected to cruelty or harassment by husband or any relative of husband;
- Such harassment or cruelty should pertain to demand for dowry.
Another significant aspect of the definition provided under Section 304-B is that the death should be caused “otherwise than under normal circumstances”. In Kamesh Panjiyar v. State of Bihar the Court gave a practical dimension to this. The body of the victim was found by her brother, lying in the verandah of the appellant’s house with blood oozing from her mouth and evident marks of violence on her neck. It appeared that the victim had been murdered by strangulation in the previous night. The Court relied on the opinion of the doctor, the evidence recovered and the testimony of the witnesses to hold that the death of the woman had been caused otherwise than under normal circumstances as expressed in Section 304-B, and hence it was a case of “dowry death”.
Usually, on a number of occasions, the Supreme Court expressed anguish and shocking view regarding deaths of young brides. In Virbhan Singh v. State of U.P apex Court said in view of increasing deaths of brides, such dastardly crimes whenever detected and proved then ruthless action and deterrent punishment must be imposed. Supreme Court concern about the acquittal of some alleged culprits but the state cannot approach apex Court in appeal. In Samunder Singh v. State of Rajasthan the court opined that anticipatory bail cannot be given in cases of bride burning and dowry deaths. Some dissatisfaction occurred at the trial level itself by the certain assumption of courts like a person with 100% burn not fit for dying declaration. If on behalf of a harassment victim some other reported matter is not reported which creates a lacuna in Indian legal system.