Introduction:
Marriage is a very sacred union of two individuals that are socially supported in what is regarded as a stable, enduring arrangement followed by a lifetime of partnership.[1] As marriage is also regarded as identity in our culture, it explains the kind of significance marriage holds in our life. Now initially there were no provisions of punishment for crimes relating to marriage but today in democratic India, we have recognized some offenses relating to marriage.
Given the construction of the institution of marriage, women are always the dominant ones, which is the root level reason why the majority of women have suffered throughout the years and we have crimes relating to marriage that especially focus on women. All the crimes we have discussed are for the protection and welfare of women in our society. All of these while keeping the sanity of marriage intact and also proving women equal rights and protection, various matrimonial offenses were criminalized.
What are matrimonial crimes and the types of matrimonial crimes?
Now the question arises what matrimonial crimes are? Under the Indian Penal Code (“IPC”), Section 493 to 498 define various matrimonial crimes. Also talk about the punishment for such crimes. The IPC defines matrimonial crimes as offenses done relating to marriage. Such offenses are usually by the husband or his relatives against the wife. It is to harm her or the marital relationship between them. As a secular nation, our laws provide different provisions for each religion in relation to marriage and children. But in criminal law there is no such distinction even with crimes relating to marriage. Thus the provisions of the IPC apply to everyone regardless of their religion.
The IPC provides for different types of marital crimes which include; conjugation by a man dishonestly, marrying again while he is still wed to his previous wife; deceitfully performing the marriage ceremonies, adultery, cruelty, etc.
Bigamy
Bigamy as defined in the IPC is a non-cognizable crime that restricts a man to marry another woman; while has a withstanding marriage. Bigamy was criminalize in the year 1955 in the codified Hindu Marriage laws. Historically, Bigamy was a common practice among Hindus and Muslims. Whereas in today’s date, bigamy is not a very common practice. Looking at the judgment of the case Valsala v Narayanan and others[2], it points out a very distinguished fact of Bigamy and it’s burden of proof.
In this case, the appellant (“Wife”) files a case of bigamy against her husband; who has married another woman under a false name and address. The surprising part of the judgment was that the wife pleaded her case. She is ask for the validity of not only her marriage but also the second marriage. In this case, the appeal dismiss on the grounds of second marriage not being valid. But does that amount to the husband walking away free after committing a fraud and to some extent also identity theft? The question that arises is the invalidity of second marriage; the only grounds for letting a husband that has cheated walk free?
A woman leaves her entire life behind and the comforts of a parental home solely on the dependency of her husband. Who walks out and marries someone else. The man got away free as his second marriage was not valid due to the non-performance of the mandatory rituals. He had the intention to marry again and thus he ought to be punish for the same.
Under the IPC, Bigamy is not a strict liability offense thus mens rea is require. It is apparent from this case that necessary mens rea existed and just because the second marriage was declared invalid under section 5(v) of Hindu Marriage Act[3] as essential rituals were not performed that does not validate the man being let off without any punishment.
In the case of Dhanasekharan v District collector, where a public servant was accuse of marrying another woman. While his first woman was still alive had had a withstanding.
IPC has an exception for Bigamy. When the spouse is in a reasonable belief; that his/her other spouse is presume dead after 7 years overseas with no communication; whatsoever has the right to marry someone else and not be liable for Bigamy. Another exception is that if one spouse is under the impression that his/her divorce with their ex-spouse is completely valid. In this case the judgment.
Dowry Death
The culture of the exchange of dowry has been in practice for a long time, this was initially used by the father of the bride to ensure that his daughter has all the amenities that she needs after marriage[4]. This has now become a day to day practice that has now become very violent towards women. The bride and her family are constantly harassed to pay more money or gifts, which if not paid leads to the murder of the woman[5]. There have been many attempts to prevent the practice from continuing, the main step that has been taken is the statute that prohibits the giving of dowry[6]. Dowry death has been criminalize, when a woman dies within seven years of her marriage. Due to unnatural causes it usually is presume to be dowry death.
In the recent case of Rupali Devi v State of UP[7], a three-judge bench comprising of The Chief Justice of India Ranjan Gogoi. Justice L. Nageswara Rao and Justice Sanjay Kishan Kaul resolved a seven-year long-pending about the definition of Harassment in matrimonial relations. The bench observed, “Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home[8]”. In this judgment, they defined harassment in both physical and mental elements.
In many instances, women have committed suicide due to force by the husband. Husband’s family to pay an extremely large amount of dowry; even though that exceeded the pre-decided amount before marriage. Such instances have in the past been overlook and the courts have said that this does not amount to dowry death. As it was an act of suicide and not an act of murder. The mental element of a crime has been recognize by IPC. Whereas today, there are provisions under IPC which criminalizes acts that lead to suicide equally as murder.
Section 304B of The IPC lays down the ingredients of Dowry Death as:
- Death of the women caused due to burns, bodily injury, or due to unnatural circumstances.
- The death should be within seven years of marriage.
- It would be shown that soon before death the women were subjected to cruelty or harassment by husband or his relative[9].
Any case that has the above ingredients, especially if the case was filed within the first seven years of marriage. The death of the spouse was unnatural and suspicious would be presumed Dowry death.
Thus, we can see in many cases over the years, the practice of dowry has not in any way diminish. The crimes against women have not in any way reduced. The law ought to take stricter action, against those who indulge in such acts. It is to protect women even in the smallest of small towns where such acts are still in practiced.
Domestic Violence
Domestic violence is when the husband physically beats the wife and many times the children as well. Unfortunately, this is very prevalent in our country and the main problem. This is that as it happens behind the closed doors of the home. Often it is near impossible to catch such acts while they are happening. There was a movement called “bell bajao andholan”[10] which had been taken up by people to help women in such situations. These acts of violence are usually physical and not sexual.
In a recent case, Badasaheb v State of Maharastra[11], the wife, Kamal was a victim of domestic violence which eventually led to death. In this case, the wife had accused her husband of having sexual relations with his brother’s wife. When she refused to come back to the matrimonial house. Because she didn’t feel safe, there was a physical threat on her and her parents to forcefully drag her out. When Kamal’s parents assured the safety of their daughter in their matrimonial house and sent her back. A few days later they heard the news of their daughter being admitted to the hospital due to grievous injuries.
The death of Kamal was first seen as a suicide until later when Kamal’s father appealed that; the cause of kamal’s death was domestic violence. Her mental trauma that was caused by her husband and his extramarital affair, which she couldn’t prove in the court.
Kamal’s father’s appeal was dismissed because there was no reasonable belief of violent act in her matrimonial house. In this case, the problem was raised when the appeal of her father was disregarded on the mere fact that there was no reasonable belief of violence. Kamal’s death was shown to be suicide and all the evidences were also tempered.
Thus we can see the justice in India, and the direction it is headed with such precedents bring set.
Should Marital rape be a Crime?
In the recent news, we have heard a lot about Sec 375 of The IPC[12] which defines the crime of rape in six different details. The section fails to include “marital rape”. Marital rape is the same definition of Rape but being committed by her husband. Non Consensual forceful sex between married couples is defined as “Marital Rape”.
Marital rape has still not been recognized as a crime in India is because it is debated that allowing wives to complain about their husbands about rape would tarnish the family name. According to the Hindu Marriage Act, a marriage is finally pronounced consummated after the couple has had sex, so giving rights to women to complain about sex with her husband would disregard the whole institution of marriage in our society.
The second issue that has been debated is that by the definition of rape, within marriage it is not possible to rape and marriage is a lifelong consent to each other for intercourse.
The third issue that has been put forward is that criminalizing marital rape would be an invasion of privacy of the married couple and also would be equivalent to “allowing the State into the bedroom”[13]
Lastly, the fourth issue is that marital rape can be used as a weapon for all the women.
All the above arguments made were very bizarre assumption and the only concern they have portrayed is to conserve the sanity of the marriage. The arguments presented have completely disregarded as to the concept of consent. Marriage does not give either of the spouse any right to a lifetime consent with their partners for intercourse. The first argument can easily be rebutted because if that was to be true, we must acknowledge that if coercion is the only way of consummating the marriage, the marriage has to be questioned in its very existence.
The second and the third arguments were valid when IPC was framed in 1860. Both these arguments were built upon the belief that marriage is a lifetime consent and the realm of marriage is beyond the constitutional scrutiny. Both the arguments presented have again completely disregarded the freedom and autonomy that our constitution gives us, courts famous right to privacy judgments.
So criminalizing marital rape will not question or have any kind of repercussion on the institution of marriage but only give people their basic fundamental right of privacy and take a further step towards individual dignity and autonomy.
Conclusion
Most of the laws relating to matrimonial offenses are tilted towards women and are, therefore, the apparent gender-neutral provisions but when they are interpreted and implemented, it goes against her. Unfortunately, the Indian judiciary has shown very little sensitivity towards women. “Marriage today is looked at a surrender of freedom for women”[14]. Complete sacrifice of dreams, aspirations, and career by a woman which is the ground level construction of marriage we have seen over the years. It’s time to change that. The equality and freedom that our Constitution gives us as a basic fundamental right should be implemented when it comes to the same with married women. Despite the distinction that our society has made between a married and an unmarried woman, our rights, freedom, and most importantly access to justice should be the same.
References:
[1] Alison Crossmen, The Definition of Marriage in Sociology, July 7th 2018 6
[2] Valsala v Narayanan and others [617 of 2019]
[3] Hindu Marriage Act 1955 Sec 5. “Condition for a Hindu Marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”
[4] VAN WILLIGEN, JOHN, and V. C. CHANNA. “Law, Custom, and Crimes against Women: The Problem of Dowry Death in India.” Human Organization.
[5] Ibid
[6] Ibid
[7] Rupali devi v State of UP [Appeal (Crl.), 71 of 2012
[8] Ibid
[9] The Indian Penal Code, 1860, §304
[10] A staff writer, Live mint, A campaign to end domestic violence.
[11] Badasahed v State of Maharastra [Criminal appeal of 475 of 1992]
[12] See The Indian Penal Code, 1860, §375
[13] Gautam Bhatia, The arguments made against making marital rape a criminal offence are not valid, Hindustan times, 2nd April 2018.
[14] Saxena, Poonam Pradhan. “MATRIMONIAL LAWS AND GENDER JUSTICE.” Journal of the Indian Law Institute,
0 Comments