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.

Restraint on Discretionary Power of Arrest Possessed by Police

Prachi Kumari, Student, Law School, BHU, Varanasi

Demo_arrest,_handcuffedHonourable Supreme Court in recent judgment of Arnesh Kumar V State of Bihar and Ors. (({Criminal Appeal No.-1217 0f 2014 and Special Leave Petition(CRL.) No.-9127 of 2013 (Supreme Court, 02/07/2014)})), expressed its view that police has not come out of its colonial image despite six decades of independence; it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.

Therefore, the apex court restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under section-498A of the Indian Penal Code, 1860. Now, the Police are required to satisfy the necessity for arrest under the parameters provided under Section 41 of the Code of Criminal Procedure, 1973.

Although, Section 41 of the Code of Criminal Procedure, 1973 contains element of discretion for a Police officer making arrest by incorporating the words ‘reason to believe’ or ‘satisfaction’ etc., mechanical arrest of persons against whom complaint is made, has been in practice in India. That is why, Chandramauli Kr. Prasad, J. moved to reiterate the relevance of section-41 of the Code of Criminal Procedure, 1973.

The abovementioned view of Supreme Court shows that police has earned negative fame only and discretionary power of arrest possessed by the police has often been misused or abused.

The recent judgment is an effort to prevent the abuse and misuse of power of arrest possessed by police. The guidelines given in this case read with guidelines given in previous cases like Joginder Kumar V State of U.P. ((AIR 1994 SC 1349)),Smt. Nandini Satpaty V P.L. Dani ((AIR 1978 SC))and D.K. Basu v. State of West Bengal ((AIR 1997 SC 610))may emerge as a tool of controlling police discretion, because it specifies what an officer must do and must not do in certain situations. It also specifies where an officer must properly exercise discretion.

However, I am of the view that discretionary power of police should not be restrained. Since it is not possible to cover every situation; police may fall in while discharging duty, in a rule book, there must be element of discretion in the powers given to police.

Common tendency of every society is to blame police for every wrong. While blaming the entire police community, why do we forget that police have done some great job for the country as well and have sacrificed their lives for our safety, be it terrorist attack on parliament or terrorist attack in Mumbai. They are the soft target groups for Naxalists or any other anti-social group. They are receiving low salary for hard work. They have to act like puppet in the hands of some influential political leaders, but their voice is not raised at national level since police service is under control of state Governments.

At this juncture, if police is left with no discretion, their condition would be more pathetic. Besides this, we will get robots in the place of human beings. This profession is already losing its charm; restraint on discretionary powers would forbid talented and skilled persons from joining this profession. Undoubtedly, some restrictions are required to prevent arbitrary use of power, but restrictions on discretionary power of arrest possessed by police should be imposed with care and other facilities should also be given to police. Restrictions are not the way to improve the colonial image of police.