Theoretical overview
Chapter XX deals with the offences within the institution of marriage. Chapter XX-A contains only one section which is section 498A that deals with the cruelty to a woman by husband or his relative to coerce her. This particular section came into existence after the second criminal law amendment in the year 1983.
Offences related to marriage can be divided into following manner: –
- Mock or invalid marriage (section 493 and 496)
- Bigamy (section 494 and 495)
- Criminal elopement or seduction (section 498)
- Cruelty by husband and relatives (section 498A)
Section 493 of Indian penal code deals with mock marriage. If a boy has made the girl believe that they have lawfully married and cohabits or have sexual intercourse with her, commits an offence. This belief can be established by deceitful means. This particular section applies only to men. The ways in which he can make her believe about their lawfully marriage can include making falsely believe that he is of same race, creed or religion or by not performing the requisite of a valid marriage. For example- Hindu representing himself as a Mohammedan. If the women was aware of the fact that she was not lawfully married and having sexual intercourse with him, then the man cannot be held liable. A man is punished because he was doing it to have her body only. This offence can also be a rape.
Section 496 states that, whoever, dishonestly or with fraudulent intention goes through the ceremony of being married knowing that he is not lawfully marrying commits an offence. He/she can be held liable for 7 years or fine or both
Essentials of section 496-
- Fraudulent or dishonest intention.
- With such intention, he/she must go through marriage ceremony.
- Must have knowledge of his or her part.
- Mens Rea is the essence of the offense of fraudulent marriage.
An important point to note here is that, section 493 only applies to a man and having sexual intercourse is the requisite to make a man liable under section 493. On the other hand, section 496 has a wider application as it applies to both men and women and having sexual intercourse for any kind of sexual relation is not an essential of this section.
In case of two marriages, first wife can file a case for bigamy, whereas the second wife can file a case under this particular section. Also, only the deceived girl or her parents can file the case and in case of husband, only he can file a case.
Section 494 states that marrying again during the lifetime of the husband or wife is an offence. Whoever having a spouse living, marry another person, commits an offense of bigamy for which he/she can be held level for 7 years or fine.
Essentials of section 494 are: –
- first marriage should be legal
- second marriage should have taken place
- spouse must be alive
- both marriages should be valid
Exception
- the first marriage is declared void by the court
- if either of the spouse went missing for the 7 years, he shall be presumed as dead and the other spouse can remarry.
Section 495 States the same offense with concealment of former marriage from person with whom subsequent marriage is contracted. It Means that, if the person hides the fact that he has been already married to someone else from the person with whom subsequent marriage is contracted commits an offence.
Essentials of section 495: –
- existence of previous marriage
- second marriage should be valid
- second be declared void by the reason of first marriage
- husband or wife must be living
- non-disclosure of marriage
Section 498 of Indian penal code states that enticing or taking away or detaining with criminal intent a married women is an offence.
Essentials of section 498 are: –
- taking or enticing away
- women to be a married woman
- the person doing it must have the knowledge about the her marriage
- taken from the control of husband of person having care of her on behalf of husband
- intention to have illicit intercourse
- conceals or detains
Section 498A of Indian penal code, which is mentioned in chapter XX-A states that, if husband or any of his relatives makes the wife subject to cruelty, then they have committed an offence for which they can be held liable for 3 years or fine or both.
Important differences
Section 493 | Section 496 |
Only applies to man | Applies both to man and women |
Having sexual intercourse is a requisite | No such requisite |
Relevant sections
Section 493 in The Indian Penal Code
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 in The Indian Penal Code
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.
Section 495 in The Indian Penal Code
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.
Section 496 in The Indian Penal Code
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.
Section 498 in The Indian Penal Code
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.
Section 498A in The Indian Penal Code
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 such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any willful 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 demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
Important case laws
Ramchandra Bhagat vs. State of Jharkhand (2013) 11 SCC 562 – where a man had promised the woman to marry and had an agreement to marry her eventually, on the belief of such promise the woman cohabited for 9 years. The man cannot be held liable as he hasn’t used any kind of deceitful means.
Pashaura Singh vs. State of Punjab AIR 2010 SC 922 – it was held that first marriage should be substituting at the time of second marriage and should be validly contracted one. If the first marriage is not a valid marriage, the second marriage does not amount to bigamy.
Points to remember
- Chapter XX deals with the offences within the institution of marriage
- Section 493 of Indian penal code deals with mock marriage
- Section 496 states that, whoever, dishonestly or with fraudulent intention goes through the ceremony of being married knowing that he is not lawfully marrying commits an offence
- Section 494 states that marrying again during the lifetime of the husband or wife is an offence
- Section 495 States the same offense with concealment of former marriage from person with whom subsequent marriage is contracted
- Section 498 of Indian penal code states that enticing or taking away or detaining with criminal intent a married women is an offence.
- Section 498A of Indian penal code, which is mentioned in chapter XX-A states that, if husband or any of his relatives makes the wife subject to cruelty, then they have committed an offence