Marital Offences in India w.r.t. HMA, IPC & CrPC

Introduction:

From times immemorial, marriage is regarded as a religious sacrament and foundation of society even long before the coming up of marital laws in India through forms like different religious preaching and divine laws. This holy union between the spouses is considered Eternal and indissoluble until death. Section 9 of the Hindu Marriage Act, 1955 (HMA) deals with restitution of conjugal rights which induces the Husband and the Wife to live together in harmony.

The sacred union between the spouses, as per the Religious Laws, functions as a Utopian emphasis of marriage where the couple is bound to live happily together.

With the changes taking place in the society like coming up of Islam, Christianity along with various traders and invaders; India’s cultural heritage and traditions got introduced with various new and different ideas to re-visit, revise and scrutinize their age-old values as well as social structure.

These changes come with a little more practical approach to the aspects of Marriage with the addition of new yet not-so indigenous notions and concepts like remedies in form of Judicial Separation, Maintenance Allowance, Permanent alimony, Decree of Nullity and Divorce etc for the circumstances where Marriage between the spouses that do not work out.

Our modern laws like The Hindu Marriage Act, 1955 (HMA), Indian Penal Code, 1860 (IPC), Code of Criminal Procedure, 1973 (CrPC) and Indian Evidence Act, 1872 not only ensure Widow/Widower remarriage but also punishes if either the spouses in indulging themselves into activities that can cause trouble, pain or chaos to the other spouse or affects the Marriage as a whole and simultaneously provides relief to parties suffering as well.

Marital Offences

The offences enumerated in Chapter XX of the Indian Penal Code, 1860 in one way or the other deal with matters related to infidelity in the institution of marriages. The Second Amendment inserted Chapter XX-A of the Indian Penal Code, 1860 under which Section 498A deals with cruelty meted out to wife.

Invalid or Mock Marriage

Section 493 IPC: This Section under The Indian Penal Code (IPC) defines Cohabitation as a deceitful inducement by a man into a belief of a lawful and Section 49 simultaneously describes a Marital ceremony fraudulently taking place between a couple without lawful marriage.

Deceitful or Fraudulent Intentions

1. Section 493 of the IPC uses the words ‘deceit’, ‘dishonestly’ and ‘fraudulent intentions’ that occur in Section 496. Here a man cheats the woman into believing that she is legally wedded to him while the man knows it to be not true. Both Sections 493 and 496 require the accused to deceive the woman, leading her to believe that they are legally married when they are not.
2. The elements of deceit and fraudulent intent are essential to the Invalid Marriage. Section 496 of the IPC cannot be drawn where both the woman as well as the man genuinely commit to a marriage ceremony that is invalid and thereafter cohabitates.
3. The man cannot be held responsible for the invalidity of the marriage if he genuinely believed and carried out the marriage ceremonies with the bonafide intention in which he had participated. The prosecution is obliged to establish the mens rea of the accused is established.

Causation of False Belief

1. In order to establish conviction of a man alleged under Section 493, the proof is required of deceit by the accused to the woman who perceived themselves as a lawfully wedded couple when he is completely aware of the scenario and therefore induces her to have sexual intercourse with him.
2. Mere deceit to a woman believing that their marriage is lawful is not a sufficient ground to constitute an offence under Section 493 and it is essential to establish that the man intends to have sexual intercourse under false pretences of marriage. However, the accused cannot be convicted under Section 493 when a woman is aware of an invalid marriage, yet she allows him to have sexual intercourse with her.
3. If a woman intentionally leaves her husband to enter a marriage ceremony with another man without his consent, she cannot bring a complaint under Section 493 IPC. A man is not allowed to marry while an appeal against a divorce order is pending, according to the HMA.
4. However, if a man marries a woman while an appeal against a divorce order is pending and he has informed her and her parents of the divorce decree, he will not be penalized under Section 496 IPC. In this scenario, any suspicion of the man having a dishonest intent is thrown out.

Bigamy

Bigamy is defined in Section 494 IPC which defines it as remarrying during the lifetime of the husband or wife. Section 495 of the IPC deals with bigamy once a previous marriage is concealed from the person with whom the second marriage is contracted.

Existence of a Previous Marriage

1. Bigamy requires the accused to have already contracted marriage, making the act of marrying for the second time by the wife or husband while their respective spouses are still alive. As a result, the second marriage is declared null and void, the same being illegal.
2. To prove bigamy, the prosecution must show that the second marriage took place while the original marriage was still subsisting. If the previous marriage was not valid, the act of second marriage would not be considered bigamy.
3. The two exceptions assigned to the provision of Section 494 are:
   • When the first marriage is declared void by a competent court.
   • Consistent absence of the previous wife or husband over a period of seven years, with no indication that they are still alive, provided that the second spouse is notified of all relevant circumstances.
   •  According to Section 108 Indian Evidence Act of 1872 (IEA), a person is assumed dead if it can be proven that he has not been heard by people who would naturally hear of him for more than 7 years. The individual attempting to demonstrate the existence of such a person bears the burden of proof.

Second Marriage to be Valid

1. In order to get a conviction under Section 494 IPC, the prosecution must prove that not only the first marriage was legitimate, but also the second marriage was valid. All marital rites must be properly performed by both spouses as per their own personal laws, thereby legitimizing the union.
2. In this Section, the phrase “whoever marries” means “whoever marries legally or validly.” Furthermore, because neither a concubine nor a mistress has the status of a “wife,” the provisions of bigamy cannot be used to help an aggrieved spouse.

Effect of Conversion

1. Converting from one religion to another by one of the couples usually generates problems in the home since it changes the personal laws that govern the parties. The main issue is that certain religions forbid polygamy while others allow it.
2. The subject of the guilt of a Hindu man whose first marriage was governed by Hindu laws and afterwards converts to Islam to marry more than once was explored in the landmark case of Sarla Mudgal, President, Kalyani v. Union of India[1]. The Supreme Court was asked if a second marriage that occurred after the husband’s conversion from Hinduism to Islam could be considered lawful. Further, Can the act of the husband performing a second marriage be considered bigamy under Section 494 of the Indian Penal Code. The Apex Court laid down the following principles: –
3. A marriage that was solemnised under one personal law and to which one of the spouses converts cannot be dissolved by applying another personal law to which one of the spouses converts. The rights that are enforceable because the parties are governed by the same personal law cannot be revoked by one of the parties’ conversions.
4. When one of the spouses converts to another faith, the Hindu marriage does not immediately dissolve, and conversion to another religion is a reason for divorce under Section 13(1) HMA. This means that the first marriage will continue to exist even if the couple converts to a different religion.
5. According to Section 11 HMA, a second marriage is a void during the spouse’s lifetime. Furthermore, Section 17 HMA states that a person is guilty of bigamy if his or her second marriage is deemed to be void since the second marriage was performed during the spouse’s lifetime.
6. However, after the husband converts to Islam, a second marriage cannot be deemed invalid, but it would be void qua the first wife, whose marriage is governed by HMA.
7. The court went on to say that in circumstances where the parties are of different religions, the court will rule based on equity, justice, and good conscience. A second marriage is void from the standpoint of equity and justice, and Section 494 would come to the aid of such a victim.

The Supreme Court overturned the ruling in Sarla Mudgal case. In Lily Thomas v Union of India[2], the Apex court issued a common order addressing the arguments. The arguments were that the ruling in the Sarla Mudgal case should be applied prospectively because it violates Articles 20(1) and 25 of the Indian Constitution.

The review petitions were denied by the Supreme Court on the grounds that the court only interpreted the existing penal code in Sarla Mudgal‘s case and did not create any new law. Furthermore, the ratio does not violate Article 25 because it does not infringe on anyone’s right to freedom of expression, propagation, or conscience. Furthermore, such an argument has been carved out solely to protect those who are attempting to break the law.

Non-Disclosure of the First Marriage

The IPC imposes severe penalties on anyone who commits Bigamy. Section 495 IPC provides for a ten-year simple or rigorous imprisonment with an undisclosed fine.

Adultery

A five-judge panel found that Section 497 IPC relating to adultery was “archaic, arbitrary, and unconstitutional,” and so decriminalized it. In the matter of Joseph Shine v. Union of India[3], a historic ruling was handed down in response to a plea submitted by Joseph Shine. In his judgement, Dipak Mishra CJ stated, “It is time to say that a husband is not the ruler of his wife.“

Criminal Elopement/Seduction

Section 498, IPC: Enticing, abducting, or detaining a married woman with criminal intent

Takes or Entices Away

1. The word “taking” does not mean “forcefully,” but rather “any type of physical or moral influence, help to the woman in moving away from the husband.” The woman’s willing act of accompaniment or voluntary temptation will not rule out the criminality of the man’s behaviour.
2. The term ‘takes or entices away’ in the Section refers to any type of elopement, regardless of whether the man or woman suggested the intention. This provision will not apply if the wife has been ejected from the home by the husband or if the wife has left the home and is living with another man.

Woman to be a Married Woman

Before the accused can be convicted, the Prosecution must establish that the woman was legally married.

Knowledge

The person who is removing or seducing the woman must know or have cause to believe that the woman in question is the legally married wife of another man.

Intention to have Illicit Intercourse

Enticing or removing a woman from her husband’s authority must be done with the goal of forcing her to have illicit intercourse with anyone or concealing or detaining her. If the act of taking away is done with the goal of something other than the aforementioned, the accused has not broken the law.

Who can complain?

1. According to Section 198 CrPC, no party other than the “aggrieved” party has the right to file a complaint in relation to any offence listed in Chapter XX of the IPC. Only if the aggrieved is a person under the age of 18, sick, lunatic, infirm, or a lady whose customs prevent her from appearing in public, can another person, after receiving leave from the court, file a complaint. Furthermore, if a member of the armed forces is the aggrieved party, he might authorise another person to make a complaint on his behalf.
2. Only a woman who has been deceived by a man into believing that their marriage is legal and then cohabiting when it is not can submit a complaint against him under Sections 493 and 496. Not only the wife, but also her mother, father, sister, brother, daughter, or son can make a complaint on her behalf if she is charged with bigamy under Section 494 IPC.
3. In Subash Babu v. State of Andhra Pradesh[4], the court held that an aggrieved party, including a second wife, might bring a case alleging bigamy. Only a woman with whom second marriage is performed without disclosing information about the first marriage is eligible to submit a complaint under Section 495 of the IPC.

Cruelty

The act of imparting cruelty to a woman by a husband or his relatives is punishable under Section 498A IPC. It forbids the husband or his relatives from torturing the wife by punishing them for harassing or torturing the wife in order to force her or her relatives to accept dowry demands that are illegal.

Prosecuting the accused in a case of cruelty is difficult inside the institution of marriage since few women speak out against such sufferings, and because cruelty is usually inflicted on the wife in the confines of a house, getting witnesses to substantiate the prosecution is tough.

There are situations when there is no direct attack, and the woman is driven to the point where she commits self-harm as a result of mental anguish. To deal with such a circumstance, the legislature enacted Sections 498A and 304B IPC, Section 113B IEA and Section 174 CrPC. According to Section 113B IEA, if it is shown that a married woman was subjected to cruelty or harassment by a person in regard to dowry demands just before her death, it is considered that the lady’s death was caused by the person who harassed her.Section 174 CrPC requires executive magistrates to hold inquests if a woman dies by suicide or a suspicious death within seven years of her marriage.

 Husband or Husband’s Relatives Cruelty

1. Only if the cruelty was perpetrated against the wife by her husband or his relatives, is Section 498A IPC applicable. Although there is no definition of the term “relative” in the IPC, it can be inferred from case law that the phrase “relatives” includes the husband’s parents, siblings, and sisters. This Section does not apply to a friend, even if he is close to the family.
2. In Reema Agarwal v. Anupam[5], the court held that a second wife cannot be protected under Section 498A IPC since the husband of such a second wife does not fall under the definition of “husband” as used in the Section during the subsistence of the first legal marriage. As a result, any cruelty perpetrated by the husband against the second wife cannot be prosecuted in a court of law.
3. Reema Agarwal committed suicide by swallowing poison after her husband and his relatives subjected her to mental torment for failing to meet their dowry demands. The trial judge found him not guilty and stated that Section 498A IPC can be used when the requirement of a legitimate marriage is met. This viewpoint was likewise supported by the Supreme Court. The Supreme Court, on the other hand, rejected the trial court’s and the High Court’s arguments and overturned their decisions, citing the following:
   There could be no legal impediment to liberally construing the words or expressions relating to the persons committing the offence so as to include not only those who are validly married, but also anyone who has assumed the position of husband to live, cohabitate, and exercise the authority as such husband over another woman.”
4. In another case, John Idiculla v. State of Kerala[6], the High Court of Kerala was confronted with crucial questions about the interpretation of the terms “the husband or a related of the husband’s relative” as used in Section 498A IPC. These issues are listed below:
   “If the second marriage occurred during the prior marriage’s subsistence, may the second wife be deemed a relative of the husband for the purposes of Section 498A IPC? If so, under what conditions can the first wife seek protection under Section 498A IPC, alleging that the second wife has been unkind to her?”
5. The High Court held that a second wife must be regarded as a relative for the purposes of Section 498A IPC and that any cruelty she perpetrates on the first wife can make her guilty of cruelty. The High court backed its judgement by stating:
   “The absence of a fully registered marriage cannot excuse an upset second wife from escaping. The nullity of the marriage cannot be used as a justification for her to harass anyone.”
6. Furthermore, in the case of Sunita Jha v. State of Jharkhand[7], the High Court of Jharkhand found that a woman in a live-in relationship with the husband of the wife can be guilty of an offence committed under Section 498A IPC.

What is Cruelty under Section 498A, IPC?

1. The term “cruelty” has not been defined by the government in light of societal changes and mores. The economic status, social standing, and background of the participants all play a role in determining whether or not an act of cruelty is committed. From a legal standpoint, the explanation attached to Section 498A of the Indian Penal Code elaborates on what cruelty is.
   “Cruelty” is defined as any behaviour on the part of a spouse or his family that causes a woman to consider suicide or suffers a major injury to her life. Cruelty is described as “further coercion of a lady or her relatives for the purpose of obtaining valued security or property.”
2. For the purposes of this clause, both mental and physical brutality will be considered acts of cruelty. Cruelty includes constant teasing and taunting, strange behaviour, pushing her to commit to a second marriage, maintaining a concubine, depriving children and wife of basic comforts and incurring expenses on gambling, challenging her chastity, and so on.
3. Cruelty is defined as a husband’s treatment of his wife that causes her to be reasonably concerned that continuing with her husband will be detrimental or dangerous to her life.
4. The Rajasthan High Court has held that the presence of the husband and his relative when the wife is subjected to abuse, is not required by law. Because repeated dowry demands might result in a woman being subjected to mental torment, causing her to be harassed as a result. Section 498A can be used even when she is at her wedded residence.
5. The phrase “coerce” refers to the act of compelling or threatening someone to do something. According to this section, the compelled “act” must be related to the wife’s and her family’s dowry demands.

Dowry Death (Section 304B IPC)

1. Because of the cruelty meted out on her by the husband and his relatives, Section 304B provides for “dowry deaths” due to any burn or physical harm within 7 years of the marriage due to the cruelty meted out on her by the husband and his relatives. The definition of the term “cruelty” provided in Section 498A can be applied to Section 304B IPC.
2. The phrase “soon before” in Section 304B IPC alludes to the close closeness of time between the wife’s death and the husband’s and his relatives’ harassment of her. As a result, the prosecution must show that the woman was treated cruelly in the moments leading up to her death.
3. The proximity test is crucial in gathering evidence of dowry death and raising a presumption against the individual who committed the heinous crime under Section 113B IEA.
4. The courts must decide the time period in question after examining all of the facts and circumstances that led to the woman’s death. The ‘soon before’ clause, on the other hand, emphasizes that the time between cruel and torturous treatment and death should be short. This implies that there must be a direct link between the effects of cruelty based on dowry demands and the death in question. If the act of torture and cruelty has gone distant in time, the influence of it has become stale, and it no longer disrupts the woman’s mental equilibrium, resulting in any effects.
5. The High Court of Punjab acquitted an accused in the case of Rajinder Amar Singh v. State of Haryana[8], who was charged with the unnatural death of his wife, which occurred two years after the dowry demands, even though it occurred within a span of seven years of marriage. They also instructed that phrase “soon before death” should not be confused with “just before death.”

Cruelty is a Continuing Offence

1. With relation to the applicability of Section 472 CrPC, which allows for limitation, the Apex court declared in Arun Vyas v. Anita Vyas[9] that cruelty is a continuing offence and that each act toward the commission of the charge of cruelty is a new starting point.
2. The court may, however, use the provisions of Section 273 CrPC to take cognizance of offences that have crossed the limitation bar for the sake of administering justice.

Who can Complain of Cruelty?

Only after a police report containing all details of the incident may a complaint under Section 498A IPC be filed. According to Section 198A CrPC, the aggrieved wife, her mother, father, sister, brother, her mother’s or father’s sister or brother, or, with the court’s consent, any person connected by blood, adoption, or marriage must file the complaint. Nonetheless, the National Commission for Women has been granted locus standi to file a curative petition in the Apex Court in matters involving Section 498A IPC.

Comparison between Section 498A and 304B IPC

1. Section 498A IPC deals with the cruelty that the husband and his relatives inflict on the wife. It’s possible that the torment will be both mental and physical. Furthermore, any dowry demands made under duress are harsh.
2. The death of a woman by bodily injuries or burns, or when such death occurred under normal circumstances over a span of 7 years of marriage, where the husband or his family inflicted cruelty or harassment on the wife in regard to dowry demands, is covered under Section 304B IPC.
3. Section 304B focuses on the ‘actual death’ caused by dowry demands, whereas Section 498A discusses the ‘cruelty’ aspect, which could lead to suicide or life-threatening situations. It is reasonable to assume that the term “cruelty” used in Section 304B has the same meaning as the explanation attached to Section 498A of the IPC.
4. It should be noted that Section 304B only applies to dowry fatalities that occur within seven years of marriage, whereas Section 498A covers any such period. If an accused is found not guilty under Section 304B, he may be charged and convicted under Section 498A.

Conclusion

After a discussion of various provisions and statues of HMA, IPC and CrPC, it is evident that with the progress in the society in different aspects, the marriage between a couple has no longer remained a religious sacrament and is also subjected to various reliefs in circumstances where the marriage reaches a certain point where there is no return or otherwise on the Marital Offences committed by either spouse as discussed in preceding paragraphs.

Modern Laws as well as the Courts in India are performing their duty keeping the emotional, sentimental as well as the legal angles of this matrimonial union of concerned spouses in mind. Laws are ever evolving, progressive and changing with time, considering every necessary demand of the society, change or amendment that would actually help in achieving the utopian conditions in India one day and hopefully laws and offences covered related to LGBTQ Marriages or even live-in relationships presently requires consideration in our modern laws too.

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References

[1] AIR 1995 SC 1531

[2] 2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363, 2001 (1) BLJR 499, 2000 CriLJ 2433C

[3] Writ Petition (Criminal) No. 194 OF 2017

[4] Criminal Appeal No. 1428 of 2011

[5] Appeal (Crl.) Case No.: 25 of 2004

[6] Crl MC No. 9610 of 2002

[7] Criminal appeal no. 1745 of 2010

[8] Civil Appeal Case No. 2671 of 2004

[9] Criminal Revision No. 316/96