Introduction on Ipc,1860
The Indian Penal Code (IPC) of 1860, enacted on October 6, 1860, constitutes a comprehensive codification of criminal law in India, delineating a wide array of offenses and corresponding penalties, thereby establishing a uniform legal framework for the administration of justice. Drafted by the first Law Commission under the aegis of Lord Macaulay, the IPC encompasses 511 sections organized into 23 chapters, addressing various categories of criminal conduct, including but not limited to offenses against the state, offenses against the human body, property crimes, and matrimonial offenses. The code embodies fundamental principles of criminal liability, defenses, and procedural norms, reflecting the legal ethos of justice, equity, and good conscience prevalent at the time of its formulation. While the IPC has been subject to numerous amendments to adapt to evolving societal values and norms, its foundational tenets continue to underpin the Indian legal system, serving as a pivotal reference for the judiciary and influencing criminal jurisprudence in jurisdictions shaped by British legal traditions.
Introduction on BNS,2023
The Bhartiya Nyaya Sanhita, 2023
(BNS), enacted on December 25, 2023, serves as a comprehensive legislative framework that supersedes the Indian Penal Code, 1860, with the objective of modernizing and reformulating criminal law in India to align with contemporary societal values and legal principles. Comprising 358 sections organized into 20 chapters, the BNS delineates a wide array of offenses and corresponding penalties, thereby establishing a more coherent and accessible legal structure. The statute introduces significant revisions to existing legal definitions, the removal of obsolete offenses, and the incorporation of new punitive measures aimed at enhancing deterrence and ensuring effective justice delivery. Furthermore, the BNS emphasizes the principles of justice (Nyaya) in a manner that is comprehensible to the layperson, thereby facilitating greater public engagement with the legal system. Legal practitioners are thus necessitated to adapt to the provisions of the BNS, ensuring their proficiency in navigating the revised legal landscape, while the statute's implementation is anticipated to have profound implications for judicial processes and the administration of criminal justice in India.
Offences Relating to Marriage in the Indian Penal Code and Bhartiya Nyya Sanhita
The offences relating to marriage under IPC are:
Concealing the previous marriage before subsequently getting wed Section 495 of IPC and section 82 of the BNS talks about a ten-year incarceration period, with a fine, for a person who hides their former marriage with someone they are getting married to. It is a non-cognizable, bailable offence, with the trial being carried out by first class Magistrate. Concealing the previous marriage before subsequently getting wed is one of the offences related to marriage.
Fraudulent conduction of a wedding ceremony without a lawful, genuine marriage
Section 496 of IPC and Section 83 of BNS provides for a jail term extending up to as long as seven years, along with a fine, for anyone who dishonestly, clubbed with a fraudulent intention, goes through the wedding ceremony, despite knowing that he is not thereby lawfully married. Adultery
Earlier, Section 497 gave way for a jail term up to five years, with or without a fine, to a person who had sexual intercourse with the wife of another man without the consent or connivance of that man. If it was not rape, the man would be guilty of the offence of adultery. Meanwhile, in such a case, the wife would not be punishable as an abettor.
Though Adultery defined under section 498 of IPC has been removed from BNS, however sec.84 of BNS reintroduces the offence directly by providing punishment to a man for enticing the wife of another man so that she may have intercourse with any person.
It is important to note that this law has since been decriminalised but continues to be strong grounds for divorce. Hence, adultery is one of the offences related to marriage.
Enticing a married woman for illicit sexual relations
Section 498 of the IPC provides for a two-year jail term, with or without a fine, for anyone who takes conceals or detains or entices away, any woman who is and whom he knows or has reason to believe to be the wife of any other man, with the intent that she may have illicit intercourse with any person.
The deceit and fraudulent intention should exist at the time of the marriage.
The essential ingredients of Sections 493 of IPC or section 81 of BNS and 496 of IPC or 83 of BNS are as follows:
the accused must have deceived the woman,
Consequently, she is led to believe that she is lawfully married to him, though in reality, she is not.
Thereby, mens rea is an essential component of both these sections. The words ‘deceit’, ‘dishonestly’ and ‘fraudulent intention’ have been used in Sections 493 or 81 and 496 or 83 respectively. This means that in both the sections while the man remains aware that they are not married, the woman is cheated on by the man into believing the same to be true.
Landmark Judgements
Subhransu Sekhar Samant ray v. The State (2002)
In this case, the Orissa High Court ruled that if the prosecutrix stated that she had resisted sexual relations with the accused, but then submitted herself to his advances after he put vermillion on her head and declared her as his wife and after he alleged that he would publicly accept her status in his life after getting a job, this constituted an offence under Section 493 of the IPC.
Alamgir v. State of Bihar (1958)
Alamgir v State of Bihar established that if a man knowingly took away another man’s wife to have illicit intercourse, intending to deprive the husband of his control over her, it would constitute an offence within the meaning of Section 498.
Mohd. Hoshan vs. State of A.P (2002)
In this case, the Supreme Court concluded that the issue of cruelty by one person to another was a subjective question of fact that depended on various factors, including the victim’s sensitivity, socio-economic background and education.
Sushil Kumar Sharma vs. Union of India and others (2005)
Sushil Kumar Sharma vs. Union of India and others is one of the leading cases on offences related to marriage. The Supreme Court, in this landmark case, noted that the purpose of Section 498A was to prevent the dowry menace. However, many cases of false complaints and abuse of this provision have since come to light. The 243rd Law Commission’s Report stated that such misuse was not a reason to remove the provision since it served a larger societal interest.
Arnesh Kumar v. State of Bihar and Anr (2014)
The Supreme Court in Arnesh Kumar v. State of Bihar declared that no arrest should be made immediately in cases where the accused had allegedly committed an offence under Section 498A. The court laid down guidelines for police officers to follow during arrests made under this section, as there had been an increase in false complaints.
Divorce
Grounds for Divorce under the Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 outlines several grounds on which a divorce can be sought in India:
Adultery: Engaging in sexual relations outside of marriage is considered adultery. It is treated as a serious offense, and substantial evidence is required to prove it. An amendment in 1976 allows for divorce based on a single act of adultery.
Cruelty: A spouse can file for divorce if they experience mental or physical harm that poses a threat to their life, health, or well-being. Cruelty is assessed based on a pattern of behavior rather than a single incident, including denial of basic needs, ongoing mistreatment, and abusive behavior related to dowry demands.
Desertion: If one spouse voluntarily leaves the other for a continuous period of at least two years, the abandoned spouse can file for divorce on the grounds of desertion.
Conversion: If either spouse converts to another religion, the other spouse may file for divorce.
Mental Disorder: A divorce can be sought if one spouse suffers from an incurable mental disorder, making it unreasonable for the couple to continue living together.
Leprosy: If one spouse has a virulent and incurable form of leprosy, the other spouse can file for divorce.
Venereal Disease: If one spouse has a serious, communicable disease, such as AIDS, the other spouse can seek a divorce.
Renunciation: A spouse can file for divorce if the other has renounced worldly life by joining a religious order.
Not Heard Alive: If a person has not been seen or heard from for seven years, they are presumed dead, allowing the other spouse to file for divorce if they wish to remarry.
No Resumption of Co-habitation: If a couple fails to resume living together after a court has granted a decree of separation, this can be grounds for divorce.
Grounds for Divorce Only for Wives
Certain grounds for divorce can only be initiated by the wife:
If the husband has committed acts of rape, bestiality, or sodomy.
If the marriage occurred before the Hindu Marriage Act and the husband has remarried while the first wife is still alive.
If a girl marries before the age of fifteen and renounces the marriage before turning eighteen.
If there has been no cohabitation for one year and the husband neglects to pay maintenance as ordered by the court.
Grounds for Divorce under the Dissolution of Muslim Marriage Act, 1939
Under the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on the following grounds:
The husband has been missing for four years.
The husband has failed to provide maintenance for at least two years.
The husband has been imprisoned for seven years or more.
The husband is unable to fulfill marital obligations.
If a girl marries before the age of fifteen and chooses to end the marriage before turning eighteen.
The husband has committed acts of cruelty.
Grounds for Divorce under the Indian Divorce Act, 1869
The Indian Divorce Act, 1869 specifies the following grounds for divorce:
Adultery.
Conversion to another religion.
One spouse suffers from an unsound mind, leprosy, or a communicable venereal disease for at least two years prior to filing for divorce.
A spouse has not been seen or heard from for seven years or more.
Failure to observe the restitution of conjugal rights for at least two years.
Inflicting cruelty that causes mental distress or harm to health.
The wife can file for divorce based on rape, sodomy, or bestiality.
Grounds for Divorce under the Parsi Marriage and Divorce
Act, 1936 (Amendment 1988)
The Parsi Marriage and Divorce Act, 1936, as amended in 1988, includes the following grounds for divorce:
Continuous absence of one spouse for seven years.
Non-consummation of marriage within one year.
Unsound mind, provided the other spouse was unaware of this at the time of marriage, and the divorce must be filed within three years of marriage.
Pregnancy by another man, provided the husband was unaware at the time of marriage and has not had sexual relations with the wife after learning of the situation; the divorce must be filed within two years of marriage.
Adultery, bigamy, fornication, rape, or other perverse sexual acts.
Acts of cruelty.
Suffering from a venereal disease or forcing the wife into prostitution.
Sentenced to prison for seven years or more.
Desertion for two or more years.
Failure to resume cohabitation after a maintenance order or judicial separation decree.
Conclusion
Offences pertaining to the institution of marriage are classified as serious crimes, potentially resulting in severe repercussions for the parties involved. Such offences include bigamy, adultery, the concealment of a prior marriage, and the fraudulent conduct of a wedding ceremony. These matters have been the focus of considerable legal discourse and examination over time. The Indian Penal Code prescribes stringent penalties for individuals convicted of these offences, with incarceration and monetary fines being the predominant forms of punishment.
