Section 493, IPC not attracted, if an ex-parte divorce decree is set aside

Bench of JAGDISH SINGH KHEHAR, S.A.BOBDE JJ., of the Supreme Court of India, while considering the question as to whether the respondent husband has committed an offence under Section 493 and 494 of the Indian Penal Code, 1860, held that, Section 493 of Indian Penal Code will not be attracted, if an ex-parte divorce decree is set aside.

In the instant case, where an ex-parte divorce decree was obtained, and in spite of the fact that, both the parties to the present case continued to live together. However, on a subsequent order, theex-parte divorce decree was set aside.

However, in the present case of the appellant, it was contented by the appellant that, the respondent, husband did not inform her about the divorce decree and continued the conjugal relationship. Subsequently, the respondent married to another person, therefore, it is contented that, the respondent committed the offence under Section 493 and 494 of the Indian Penal Code.

Then she came to know about the ex-parte divorce decree and subsequently the appellant of the present case filed an application for setting aside said ex-parte divorce decree, and the same was allowed. Hence, the court in this case observed that, in sum and substance, therefore, thematrimonial ties between the appellant and the respondent came to be restored, as if the marital relationship had never ceased.

On the ground of above mentioned findings the apex court opined that, the respondent husband could not have deceived the appellant of the existence of a “lawful marriage”, when a lawful marriage indeed existed between the parties, during the period under reference, and held that the charge against the respondent of the present case is not made out, under Section 493 and 494 of the Indian Penal Code.

Read full judgement on Ravinder Kaur v. Anil Kumar (09-04-2015, Supreme Court)

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Section 493 of the Indian Penal Code, 1860 deals with the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Under this section a man either married or unmarried who induces a women to become, as she thinks, his wife, but in reality his concubine, is punishable for the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage, with imprisonment for a term of 10 years and shall also be liable to fine or both.

In order to constitute an offence under Section 493 of Indian Penal Code, 1860, there shall be a;

However, if a woman married a man with the knowledge that, he was already a married man and there was no proof that the man falsely induced her to believe anything, it was held that, the ingredients of the offence under Section 493 were not made out ((Saurava Barik v. Gauri Kaudi, 1994 Cr.LJ 440)).

Where a man and woman exchanged garlands, the man promising to marry formally, and had se as a result of which the woman became pregnant, it was held that, exchange of garland did not amount to falsely inducing the woman to believe that she was married to the man ((Amruta Gadtia v. Trilochan Pradhan, 1993 Cr. LJ 1022 (Orissa).)).

In Akhaya Kumar v. State ((1998 Cr. LJ 1757 (Orissa).)), the accused and the prosecutrix were in love with each other for several years. The accused married another and still continued to cohabit with the prosecutrix on false pretences of marrying her. The prosecutrix was aware of this fact. Hence, there was no deception. Framing of charge against the accused under Section 493 of Indian Penal Code, 1860 was not proper.

Offences relating to marriage under IPC

Section 493 to 498 A, of the Indian Penal Code, 1860 deals with the offences relating to marriage. Section 493 of Indian Penal Code deals with the offence of Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.

By virtue of Section 493, 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.

Thorough reading of above mentioned Section makes it clear that, in order to constitute an offence under Section 493 of IPC, it shall have following two essential ingredients;

  1. Deceit causing a false belief in the existence of a lawful marriage; and
  2. Cohabitation or sexual intercourse with the person causing such belief

Section 494 of Indian Penal Code deals with the offence of Marrying again during lifetime of husband or wife. By virtue of said section, 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.

However, Section 494 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.

Further, whoever commits the same offence with concealment of former marriage from person with whom subsequent marriage is contracted, the fact of the former marriage, shall be punished under Section 495 of Indian Penal Code, with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 496 of Indian Penal Code deals with the offence of Marriage ceremony fraudulently gone through without lawful marriage. By virtue of Section 496 of IPC 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.

By virtue of Section 497 of Indian Penal Code, 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.

Section 498 of Indian Penal Code deals with the offence of Enticing or taking away or detaining with criminal intent a married woman. By virtue of Section 498 of Indian Penal Code, 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.

By virtue of Section 498 A of Indian Penal Code, 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. For the purpose of this Section, the term “cruelty” means;

  1. 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
  2. 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.

This is one of the Sections in the Indian Penal Code, which is widely misused. Read more on the misuse of sexual harassment laws in India.