Open Access Research Article
LAW RELATING TO MATRIMONIAL OFFENCES IN INDIA - A CRITICAL STUDY (By- T SIVANI YADAV, K YAMINI REDDY & M NIKHILA)
Abstract
LAW RELATING TO MATRIMONIAL OFFENCES IN INDIA - A CRITICAL
STUDY
AUTHORED
By- T SIVANI YADAV
K
YAMINI REDDY
M
NIKHILA
ABSTRACT
The notions of matrimonial duties and obligations of husband
and wife in the present generation of Indian societies have changed much since
the time of ‘Manu’. Therefore the concept of matrimonial offences is required
to be studied in a new light and according to various legislation and judicial
trends developed in the present time, which is the object of the present
research. So, the main object of the study is to evaluate the role of legislation
in reference to matrimonial offences, to recognize the defects of the laws
related to matrimonial offences and indicate various factors that are not
tendering to give desirable success. In order to achieve the aim legal
provisions need critical scrutiny. The present research work requires a
Doctrinal method of study of the topic.
Keywords: matrimonial offences, duties, obligations, legal provisions
INTRODUCTION
It is not a modern or recent thing to insult women.
Throughout the centuries, in all countries, nations, regions and religious
communities of the nation, women have been the victims of abuse and brutality.
Cruelty and abuse against women should be understood from a historical point of
view since it is connected to its 'place' in culture to a significant degree.[1]
With each passing day, the rise of marriage offences is
growing exponentially, and we are all mindful that not only women but even men
experience these offences equally against themselves in today's period.
Matrimonial crimes are acts that are performed against each other by either
partner. However, multiple marriage rights are given by different clauses of
the Indian Penal Code and several of them refer to both partners.
Matrimonial crimes of nature are multi-causal and
multi-dimensional. For a straitjacket strategy, it is difficult to handle them
equally. This goes beyond culture, as well as social status. Nevertheless,
there are clearly fundamental common variables. Increasing instances of marital
crimes against women are profoundly embedded in ignorance and neglect, which
are mainly the product of the widespread recognition of the supremacy of men
over women, which is apparent from the gender specifics of the essence of these
crimes.
CONCEPT OF MATRIMONIAL OFFENCES
? Concept of marriage
A widely agreed concept of marriage is out of wedlock or
matrimonial, a social sanction of a partnership between 2 persons that is
traditionally recognised. This union aims to define rights and responsibilities
between two persons, together with their children and in-laws, who come
together in this union.[2]
? Laws against marriage
However, over centuries, the sacrosanct practice of marriage
has persisted and absorbed numerous skewed representations of the same in
itself. To rectify them, and then guarantee that no innocent life dies.
Different rules and precedents were adopted by different courts, with the
Hon'ble Supreme Court providing the most illuminating ones. Such wrongdoing,
such as adultery, desertion, or cruelty, among others, is considered to be
marriage crimes or marital offences.
Despite the different security rules enacted made by the
government, and actions taken by the executive, incidents of marital crimes
appear to escalate steadily and stay undisturbed. More and more women are introduced
to the list of victims of these civil crimes with each passing day.
What is worse is that owing to the inability of culture to
recognise its morbid components and victim-shaming, several of these incidents
go unreported. When it's clubbed with fear and an unknown future, the scenario
heads farther south. Societies are caused to have little to no confidence in
the law, particularly among women. Typically, they get terrified of the
lengthy, boring court proceedings and are frightened of the immense amount of
money required to support them.[3]
The presumption of evidence (BoP) falls with the prosecutor
who calls for the crimes. Proving those marital violations contributes to
grounds for divorce and tends to be relevant in claims for financial relief
before and after marriage in magistrates' courts. We will address some of these
rules and landmark case decisions in this post.
? Marital rape
Marriage is a social contract between a
man and a woman that is legitimately sanctioned. It is legal to have intercourse
between a husband and a woman. The spouse has right over the wife regardless of
the legality of intercourse, which becomes the sole justification for marital
rape. Although the legal meaning differs, any forced sexual contact or
intrusion gained through coercion, the threat of force, or when the wife is
unwilling to consent, may be described as marital rape. The spouse should not
be found guilty of abusing his wife regardless of the implied marital agreement
to cohabit, in proper perception. However, in view of the growing number of
instances of marital rape in our society, no legislation or rule determines
marital rape. Article 14[4]of the Indian Constitution
speaks of the right to freedom, but women suffer violations of their privileges
in marital rape situations. De facto, though not de jure, marital abuse occurs
throughout India.
? Types of marital
rape
Force Just Rape- “A husband who uses intimidation and
aggression only to the extent required to coerce sex is defined in the word. In
relationships where aggression is mainly verbal, and/or in relationships where
violence happens only/primarily in sexual encounters, this form of rape
typically happens.
Battering
Rape- It is referred to as 'battering rape' when beatings and rape are mixed.
Sexual harassment is part of the broader psychological, verbal, social,
financial and physical violence trend.
Obsessive
Abuse- 'Obsessive Rape' is the most blatantly sadistic form of rape. The
attacker is fascinated with sex, and he is aggressive in the act itself.
Exception 2 to Section 375, therefore,
exempts unwilling sexual contact between a husband and wife over the age of
fifteen from the concept of rape in Section 375 and thus immunizes those
actions from punishment. Punishment for rape is given in IPC section 376[5].
According to this Clause, for a term not
less than 7 years but which may be expanded to life or for a term lasting up to
10 years, the rapist should be prosecuted with imprisonment of any description
and shall also be liable to a fine.
? The
cases where a spouse may be criminally charged for a marital rape crime are as
follows, according to the Indian Penal Code:
? If the wife is between the ages of
12-15 years, the crime is punished by incarceration of up to 2 years or both.
If the wife is under 12 years, it is
punished by incarceration for a period of not less than 7 years.
? Abuse
of a divorced wife, a felony punished by incarceration of up to 2 years and a
fine.
? Abuse of a wife above the age of
15 is not punishable.
The Justice Verma Committee
Study (2013) suggested that the marital rape exception be eliminated.
Fortunately, in November 2017, in the case of Critical Thinking v. Union of
India[6], a divisional bench of SCI
struck down exception 2 to Section 375, IPC as breaching Articles 14 and 21 of
the Indian Constitution.
In the
42nd opinion of the Law Council, it was proposed that a man's sex with his
minor wife could be liable to criminal responsibility. The committee, however,
dismissed the suggestion saying that the husband should not be accused of
raping his wife of any age because sex is a marital parcel.
The Sexual Abuse Safety of Women Act,
2005, is a reasonable legal recourse for violence against women, which also
involves marital rape. It is possible to declare sexual activity without
permission as a breach of integrity and should thus be treated as a criminal
offence. The act considering this breach as a civil offence has given few civil
redresses, such as penalties, immunity, etc.
? Child marriage
It is a girl or boy's marriage
below 18 years and applies to all formal and informal unions wherein children
reside with a spouse. Child marriage affects both girls and boys, but it
overwhelmingly affects girls, especially in South Asia.
With the approval of the judge, several
states in the US approve child marriages. Since 2015, the legal age of marriage
in Canada has been set at 16 years old. Juveniles under the age of 18 or 19 are
subject to further restrictions in Canada, where the majority age is
established at 18 or 19 by province/territory (i.e. parental and court
consent). It is an indictable offence to participate in a marriage ceremony if
one of the parties is under 16 years old, and those who do so face a sentence
of up to five years' jail. ‘ An indictable offense punishable by up to five
years in jail is committed by anybody who participates in, promotes, or
celebrates a marriage ritual or ceremony with the knowledge that one of the
married individuals is under the age of 16 years. Anyone under the age of five
who commits an offense is ineligible for punishment. Matrimonial Causes Act
1973 states that a marriage performed by a person under the age of 16 is void.
Child marriage rates are not directly correlated with a lower legal age of
marriage. Legislative restrictions and the average time between first and
second marriages do have a correlation. According to the 1960 Census, 3.5
percent of females in the United States married before the age of 16, while
another 11.9 percent married between the ages of 16 and 18.Higher percentages
of infant marriages have been seen in states with lower marriage age
restrictions.
? Cohabitation by Fraud and Inducement
It is the Cohabitation through Deception and
Induction under section 493[7]of IPC when a man performs the
crime of Mock Marriage. Under Section 493, in a mock marriage, a man
misleads a woman into having intercourse under the preconception of marriage.
IPC provides for a 10-year prison term along with a fine. For a considerable
amount of time, this section has been a subject of heated debate.
It must be conclusively proven that the men either
fraudulently or dishonestly made a false statement purposely to prove this
crime, or withhold such evidence from a child. IPC 493 punishes men who induce
women to become concubines, but who allow their wife dream about themselves.
This crime is perpetrated by a person who wrongly assumes that a woman is of
the same ethnicity or faith as her and even after understanding explicitly that
such marriage is unlawful in the eyes of law allows major or minor women to
marry him (as a matter of reality minor may be more easily fooled than adult)
and often makes her feel that it would be a legitimate marriage. The Calcutta
High Court ruled that the offence performed under this provision could also be
punishable by section 375[8] as rape.
? Bigamy
Whoever marries while
having a surviving husband or wife in any case then the marriage is
invalid due to the existence of such husband or wife. such an
act punishable under incarceration and also penalized by
imprisonment for up to seven years and a fine.
Apart from that there are
few situations where a person can marry again, if the court pronounces his/her
previous marriage void then those wife and husbands doesn’t fall under this
ambit. Adding to it the spouse is absent for a period of more than seven years
then the other spouse need to obtain a degree from the court of competent
jurisdiction stating the constant absence of such a person.
In order to prove a
bigamy there are certain requirement that need to be fulfilled as of, the
accused must be married and the wife/husband must be alive. Second the accused
must marry second time during the subsist of his first marriage. Finally, both
the marriage’s must have completed necessary ceremonies.
Legally second marriage
is considered itself void under section 494[9] of
the IPC itself. Even then the sections hold few exceptions cases where in the
second marriage is considered.
a. First marriage being invalid
b. Spouse missing for more than 7 years
Along with the IPC bigamy
is also prohibited under personal laws. For instance, under Hindu Marriage act
section 1 subsection (a) (b) (c) speaks about the religion and the persons
falling under the act. The act specifically mentions under section 17[10]
that, whosoever falls under the ambit of section 1 of the HMA are not allowed
to marry another person during the existence of their spouse. This can be
understood from the following case
Under Christian marriage
act, there is generally no specific rule mentioning that bigamy is prohibited.
But section 60 subsection (2)[11]
specifically mentions that during the time of marriage/oath neither the person
intending to marry nor get married should either have a living spouse or
continuing marriage. This provision makes it clear that bigamy is neither
encouraged in Christian marriage act also. The same rule applies to parsi
marriage and divorce act.
The law is quite
different for Muslims since, under Muslim Marriage law, a man can have more
than two or three wife’s and they need to be treated equally along with all the
other wife’s. Hence, they are an exception for the rule under IPC
A person who conceals
their previous marriage with someone to whom they are getting married faces a
ten-year prison sentence plus a fine under Section 495. It's a non-cognizable,
bailable offence that'll be heard by a first-degree judge. The conduct of a
wedding ceremony without a valid legal agreement. Anyone who enters the wedding
service dishonestly, clubbed with a false motive, although knowing that he is
not lawfully married, faces a punishment of up to seven years in prison and a
fine under Section 496.
? Fraudulent marriage or Unlawful
marriage
Whoever goes through the marriage ceremony with the
purpose of committing fraud, recognising that he is not legitimately marrying
thus, shall be punishable with incarceration that may last up to seven years
and be liable to a fine under I.P.C. Section 496[12].
Where the parties to the marriage or some individual to
the marriage having the information that no legitimate marriage is constituted
is the nature of the marriage alluded to in section 496 of the IPC, where the
prosecutor could show that it was in the knowledge of the accused that no
lawful marriage had been organized and that he had gone through the marriage
for the corresponding purposes.
Under section 496 of the IPC, a simple verbal
representation that a woman is married is adequate and does not include any
sort of symbolising marriage. However this provision does not include any
cohabitation or sexual activity as a prerequisite, although it is necessary to
come under section 496 of the IPC for a fake or deceptive marriage ceremony.
Section 496 occurs if a fake marriage wedding has taken
place for the intent of pretending to be a legitimate marriage and such a
marriage does not constitute a valid marriage if the result is sought for
certain collateral dishonest reasons by the proceedings. If any side is tricked
into thinking that it does not constitute a legal marriage.
? Adultery
Marriage is considered as
the most prestigious institution in the Indian society and the sanctity of the
marriage should always be protected. One such activity that defeats the
sanctity of marriage is adultery. Adultery is a consensual extramarital sexual
affair. From the last 158 years, adultery was considered as a crime as it is a
delinquent act that violets the social norms.
But after the supreme court judgment on Joseph Shine Vs Union of India,
adultery is considered as a civil wrong than a crime.
The word adultery is derived
from the French word “adulterium” which means to corrupt. In layman terms
adultery means when a married man come under a sexual relationship with a woman
without entering into a wedlock with her.
Section 497 of the Indian
Penal Code defines adultery as,
When a man consensually
with all the reasons to believe involves in a sexual relationship with a wife
of another man, without the consent or connivance of that man, such an act
doesn’t amount to rape but the man is made guilty of the offence of adultery.
In such case he might undergo a punishment of 5 years of imprisonment or fine
and in some cases both. Generally, in such situations wife is not considered as
an abettor.
In the year 2018, there
was a remarkable judgement made in the case of Joseph Shine Vs. Union of India,
where in the facts of the case are petitioner being a hotelier filed a PIL that
the law deprives the women’s fundamental right to sexual autonomy. The PIL is
considered with the objective of social welfare of the society. His petition was
accepted in view of locus standi.
It’s after this judgment
the section has been decriminalized, but adultery is still a ground for
divorce. Previously there were allegations made up that by criminalizing
adultery, women’s right to sexual autonomy, sexual expression under article 21
of the of the constitution is violated along with right to equality under
article 14 of the constitution
In the case of Smt. Sowmithri Vishnu v. UOI[13]
is a quite discussion that adultery only makes a man liable for having an extra
marital affair with the married women, and this can be filed by the husband of
that women. But this is not a case where a woman can charge another woman for
having a marital affair with her husband, thus making it gender discriminative.
Adding to it this section only speaks of married women which mean the sections
doesn’t hold up any offense if such extra marital affair happens with some
unmarried women there by seeing women as a chattel or a property of the man.
Adultery continues to be
a ground for divorce
There should be no shadow of uncertainty that adultery,
even breakdown of marriage, can be a reason for some sort of civil wrong,
Joseph Shine v. Union of India.[14]
The ideology underlying the framework of the provisions of s. 497[15],
from I.PC. It is the common good is promoted between the husband and the wife
by encouraging them to "make up" or "break up" the marital
tie rather than drag each other for the crime of adultery to the criminal
court. By entering a marital court and snapping the marriage tie by obtaining
divorce, they will then condone the offense with a ‘forgive and forget’ spirit
and remain together or separately. It is not allowed for them to take each
other to prison. Maybe the children (if any) are often spared from the pain of
one of their parents being incarcerated in the case of the other parents.[16]”
? Enticing a married woman for illicit
sexual relations
In
order to have unlawful sexual intercourse with anyone, any person who takes
away or hides or detains any woman he knows to be another man's wife in order
to do so, or both men who have sexual intercourse with any other man's wife,
knowing she is, shall be punished with two years in prison or a fine. Under the
Indian Penal Code (IPC), anybody caught seducing a woman who is, or has reason
to believe, the wife of another man in order to engage in illicit sexual
relations with that person faces up to two years in jail and a $2,000 fine.
Hypocrisy
and a lack of sincerity are expected at the time of the marriage. Accordingly,
the fundamental elements of Sections 493 and 496 are as follows.
There
is no doubt that the woman was duped by the accused."
Thus,
even though it's not true, he's made her feel she's legally married to him.
In
other words, each of these sections is incomplete without a discussion of mens
rea. Deception, dishonesty, and deceptive purpose are all employed in Sections
493 and 496. As a result, while the guy is aware that they are not together,
the woman is misled by the male in both sections to believe that the same is
true.
? Key Source of Cruelty for Dowry
Demand
Domestic abuse and violence against women are however a
widespread occurrence in the world. Married women are not only viewed with
brutality, but with little more than wearing clothing, they are turned away
from marriage homes some time. Different ways of cruelty have arisen in India
in the past, with the passage of several modern forms of cruelty. Any types of
cruelty include suicide, foeticide, polygamy, Bride Burning and Bigamy.
Dowry became an acknowledged universal wrong, a real
burden that vitiated and destroyed the unity, prosperity and development of the
family. Efforts have been made to counter this bad, but it gets out of control
against the best efforts. Dowry requirement is one of the main triggers of the
cruelty of marriage. If we trace history, we notice that marriage was
considered a 'Kanyadan' among Hindus. The Dharmshastra founded that unless a
'Dakshina' was granted to the bridegroom, the meritorious act of Kanyadan was
not complete. The vardakshina was granted out of love and affection and varied
in conjunction with the bride's father's financial status. For this reason, it
was voluntary and no coercion was practised. However, two facets of Hindu
Marriage (i.e. Kanyadan and Vardakshina) gift to bride and bridegroom get
embroiled with the passing of time and late on assumed the terrifying name of
dowry for the procurement of which compulsion, coercion and, rarely, abuse
started to be used and gradually became a bargain for most Hindu marriages.
Dowry has been a common threat in the span of time, which now has reached
threatening dimensions. Surprisingly, it has expanded to other cultures that
have historically been non-dowry communities.[17]
CONCLUSION
There
is no way around the fact that there are various marital norms that apply to
individuals, which is an inescapable result of the diverse and diverse social
environment in which we find ourselves. This complicated structure is often a
source of misunderstanding for the general public and may result in significant
legal consequences. When it comes to marriage, the union between two people
must be recognized as legal and legitimate in the eyes of the law. Most
marriage laws also require that weddings are registered for the status of the husband
and wife to be established and for them to assert their legal remedies in the
courts when necessary. The proliferation of legal provisions is often cited as
a source of concern since it complicates compliance and the other difficulties
described above.[18]
On the road ahead, we must accomplish the constitutional aim of implementing
uniform civil laws founded on gender equity values and ensuring that standard
marital rules are in place for all faiths while also recognizing our cultural
and religious diversity.
Even
though marriage is regarded as a sacred sacrament, marital infractions have
tainted the integrity of the pious institution of marriage. The number of
crimes against women is numerous, and the number of crimes against women in
marriage circumstances is rising daily. Provisions dealing with charges linked
to marriage offenses have been designed so that if just specific essential
prerequisites are completed, presumptions are raised against the accused. There
is still a lack of clarity about these regulations, which undoubtedly need more
attention and be modified and written appropriately while considering all of
the shifting effects. The moment has come for women to begin speaking up
against the injustices that have been perpetrated on them. According to Article
51A(e) of the Indian Constitution, every citizen of the country renounces acts
that insult the dignity of women and girls. General reform of the law is also
required to safeguard a woman's bodily and personal satisfaction while
performing a wife’s duty from abuse perpetrated by her husband.
Published Paper
Author Details
Author Name: T SIVANI YADAV, K
YAMINI REDDY & M
NIKHILA
Title: LAW RELATING TO MATRIMONIAL OFFENCES IN INDIA - A CRITICAL STUDY
DOI Link: https://www.doi-ds.org/doilink/05.2022-45367276/T SIVANI YADAV, K YAMINI REDDY & M NIKHILA
Email Id: T SIVANI YADAV- yadavsivani999@gmail.com
K YAMINI REDDY- yaminireddy@dsnlu.ac.in
M NIKHILA- nikhilamuppana@dsnlu.ac.in
Article Information
LAW RELATING TO MATRIMONIAL OFFENCES IN INDIA - A CRITICAL STUDY (By- T SIVANI YADAV, K YAMINI REDDY & M NIKHILA)
Authors: Author Name: T SIVANI YADAV, K YAMINI REDDY, M NIKHILATitle: LAW RELATING TO MATRIMONIAL OFFENCES IN INDIA - A CRITICAL STUDY, K YAMINI REDDY, M NIKHILAEmail Id: T SIVANI YADAV- yadavsivani999@gmail.com K YAMINI REDDY- yaminireddy@dsnlu.ac.in M NIKHILA- nikhilamuppana@dsnlu.ac.in
- Journal IJLRA
- ISSN 2582-6433
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International Journal for Legal Research and Analysis
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