Abstract

Marriage is a social institution without which no society be imagine.

Marriage converts uncivilized society into civilized society. Marriage provides
status to the parties. Marriage is mere more than physical relations as it establish
relations between two partners, family & society. But a number of offences are
committed behind the curtains of marriage such as adultery, domestic violence,
marital rape, abuse & cruelty etc. As marriage is emotional union therefore it
affects both parties mentally, emotionally as well as psychologically. As per the
need of our society, legislature enacts certain laws for the protection from
matrimonial offences. The executive body & judiciary plays a significant role in
the enforcement of these laws and prevention of matrimonial offences.

Introduction
A generally accepted definition of marriage is that of matrimony or
wedlock, which is a culturally recognised social sanction of union between two
people. This union helps in establishing rights and obligations between two
people coming together in this union, along with their children, and the in-laws.
However, the sacrosanct institution of marriage has been existing through
generations and has consumed in itself various distorted versions of the same.
To correct them, and subsequently, make sure that no innocent life suffers.
Different laws and precedents have been brought in by various courts, with the
most illuminating ones being from the Hon’ble Apex Court. Such
misbehaviours, namely: adultery, desertion, or cruelty, amongst others, are
known to be offences against marriage or matrimonial offences.
Offences relating to Marriage

Offences pertaining to marriage are provided in Sections 493 to 498, of

the Indian Penal Code, 1860 (IPC)1. These laws deal with the various aspects of
a marriage, and their subsequent felonies.

Marriage According to Hindus

In Hindu, Marriage is a holy union between two persons who takes
seven rounds as a witness to the sacred fire which is deemed to form of God.
For most people in India, marriage is one time event in life. Marriage is the
bond of seven births. “Once it is tied, it cannot be Untied.” “A great marriage in
not when the perfect couple comes together. It is when an imperfect couple
learns to enjoys their differences.”

Marriage According to Hindus

In Muslims, Marriage is contractual in nature. As per Prophet
Muhammad, “Marriage is my sunnah, and whoever does not follow my sunnah
has nothing to do with me. Get married, for I am heartened by your great
numbers before the nation.”

Marriage then and now

In ancient time, marriage is sacramental in nature however women were

considered as a property of man and they treat women according to their wishes.
Sati-Pratha, Prostitution, Demand of Dowry, Child Marriage, Poly-gamy,
Cruelty, Abuse, Assault etc. were the offences committed against the women.
Due to the advancement of science, technology & time marriage becomes
sacrament-cum-contractual in nature. The exploitation of women used to

1
https://www.legalserviceindia.com/legal/article-3123-offences-related-to-marriage-sec-493-to-498a-.html
happen even earlier, it happens even today, but only its way has changed. In
today’s time not only women but also men suffer from matrimonial offences.

Provisions relating to matrimonial offences

General Provisions

 Indian Penal Code, 1860

 The Criminal Procedure Code, 1973
 The Immoral Traffic (Prevention), 1956
 Pre Conception and Pre Natal-Diagnostic Techniques Act, 1994
 Protection of Women from Domestic Violence Act, 2005
 Special Marriage Act, 1954
 The Prohibition of Child Marriage Act, 2005

Special Provisions

 Hindu Marriage Act, 1955

 Muslim Law

Matrimonial offences

Mock marriages

Section 493 is for every man who deceives a woman into having carnal
intercourse with him under the pretext that she is married to him. For this, the
Indian Penal Code provides for a ten-year jail term, with a fine. This section has
been a topic of heated debate amongst lawmakers for a considerable amount of
time.
 Subhransu Sekhar Samantray Vs. The State (2002),2 3
the Orissa
High Court contended that the statement of the prosecutrix that she had resisted
the establishment of sexual relations with the accused, but when he put
vermillion on her head and declared her as his wife, and alleged that he would
accept her status in his life publicly after getting a job she submitted herself to
his advances, is sufficient to constitute an offence under Section 493 of the IPC.

Kashuri v. Ramaswamy (1978),4 5 the court said, “the proof of sexual

intercourse has to be inferred from the facts and circumstances of a case as
direct evidence can rarely be proved”.

Fraud Marriage

Section 496 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.

Cruelty

No precise definition of cruelty exists, nor is it possible to do so. Acts or

conduct constituting cruelty can be so numerous and varied. It may be physical
or mental. It can be violence some attitude or even mere silence. The Apex
Court, in the case of Mohd. Hoshan vs. State of A.P (2002) 6 7 concluded that
the issue of cruelty, by one upon the other is essentially a question of fact, and is
quite subjective in nature. The impact of complaints, accusation or taunts on a
person amounting to cruelty depends on various factors of the victim, viz:

2
Subhransu Sekhar Samantray vs The State, 2002 Crl LJ 4463
3
https://indiankanoon.org/doc/861512/
4
Kasthuri And Ors. vs Ramasamy, 1979 Crl LJ 741
5
https://indiankanoon.org/doc/1769665/
6
Mohd. Hoshan, A.P. & Anr vs State Of A.P
7
https://indiankanoon.org/doc/200402/
sensitivity, socio-economic background, education etc. The court further
elaborated that mental cruelty varies from person to person

Section 498A of Indian Penal Code 1860

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.”

Abuse

Abuse means use of immoral words and performing immoral acts by

either spouse with the other spouse. Abuse may be either by verbal or gesture. It
may be sexual, emotional, physical and mental.

Child Marriage

Child marriage is big issue from the ancient time. Child means a person
who is under the age prescribed by then law 8. Child means a person who, if a
male, has not completed 21years of age, and if female, has not completed years
of age9. Child marriage means a marriage to which either of contracting is a
child10. Every child marriage solemnised shall be voidable at the option of the
party who was child at the time of marriage 11. The bridegroom should have
completed the age of 21 years and the bride, the age of 18 years at the time of
marriage.

Dowry Death
8
https://indiankanoon.org/doc/1208433/
9
https://indiankanoon.org/doc/640985/
10
https://indiankanoon.org/doc/1422776/
11
https://indiankanoon.org/doc/635068/
 Death caused due to the demand of wealth by either parties to the
marriage. It is not necessary that only bridegroom family demands dowry,
however in few states during marriage, dowry is demanded by the bride family.

Section 2 of The Dowry Prohibition Act, 1961 (Definition of ‘dowry’)

In this act, ‘dowry’ means any property or valuable security given or

agreed to be given either directly or indirectly.

12 13
Rajesh Sharma and others v. State of U. P : - In this case, it was
determined that in order to protect the innocent person, i.e., the husband as well
as their relatives, the Court directed the formation of a “Family Welfare
Committee” to deal with Section 498A of the IPC, and that no one would be
arrested until the committee provided justice to the Complainant. “The
committee’s primary goal is to separate genuine cases from fraudulent ones.” To
provide assistance to victims of false complaints.

Domestic violence

The Domestic Violence Act 2005 is enacted by the Parliament and it is

central legislation which is religion neutral. It provides meaning of domestic
violence, procedure for obtaining relief and etc. Section 3 of The Protection of
Women from Domestic Violence Act, 2005 defines domestic violence.

14 15
Manoj Bhimrao Wankhede Vs. State of Maharashtra : In this
case the court held that complaints can be filed not only against the adult male
person, but also against the adult male’s female relative.

Adultery

12
Rajesh Sharma and others v. State of U. P.
13
https://indiankanoon.org/doc/199759237/
14
Manoj Bhimrao Wankhede Vs. State of Maharashtra.
15
https://indiankanoon.org/doc/801831/
 Adultery as a ground for divorce that is available to both parties in a
marriage. Adultery is defined as voluntary sexual activity outside of marriage. It
is the petitioner’s responsibility to show that there was a valid marriage and that
the respondent had sexual relations with someone other than him or her. Section
13(1) (i) of Hindu Marriage Act,1955 “It is valid ground for divorce for the
parties, if any party after the solemnisation of marriage, had voluntary sexual
intercourse with any person other than his or her spouse.”

16 17
Joseph shine v. Union of India : “The court upheld the
constitutional validity of the section 497 read with section 198 by stating that
this provision disables both husband and wife from punishing each other for
adultery but it is ground for divorce”.

Bigamy

It consists of two words “Bi” means “two” and “Gamy” means

“marriage.” It means that a spouse has two living spouses at the time of living
of earlier spouse. Marriage between two Hindus can be contracted only when
“Neither party has a spouse living at the time of the marriage” 18. Here, ‘Hindu’
includes any person who is a Buddhist, Jain and Sikh. Section 17 of Hindu
Marriage Act, 1955 Provides for the punishment for bigamy in accordance with
Section 494 and 495 of the Indian Penal Code. Section 494 of Indian Penal
Code,1860. Whoever, having a husband or wife living, marries in any case in
which such marriage is void by reason of it 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. Every
person whose marriage is solemnized under Special Marriage Act, 1954 and
who, during the lifetime of his or her wife or husband, contracts any other

16
Joseph shine v. Union of India.
17
https://indiankanoon.org/doc/81882321/
18
https://indiankanoon.org/doc/635068/
marriage shall be subject to the penalties provided in section 494 and section
495 of the Indian Penal Code, 1860 (45 of 1860), for the offence of marrying
again during the lifetime of a husband or wife, and the marriage so contracted
shall be void.

19 20
Sarla Mudgal v. union of India “In this case the Supreme Court
held that the second marriage of a Hindu-husband after conversion to Islam
without having his marriage dissolve under law would be invalid, the husband
would be guilty under section 494 of Indian penal code 1860.

Female Foeticide

Foeticide means the abortion or killing of the child. Our society is

patriarchal society and it is biased towards giving birth to male child so that
their supremacy is maintained in the society. Female foeticide is most violent
crime on this earth as the child who is unknown to the world is killed. It is most
heinous crime in this planet and eyes of the law.

Desertion

The Indian Parliament explains in sub-section (1) of Section 13, Hindu

Marriage Act, 1955 that “the expression ‘desertion’ means the desertion of the
petitioner by the other party to the marriage without reasonable cause and the
consent or against the wish of such party and includes the wilful neglect of the
petitioner by the other party to the marriage.

21 22
Gita Jagdish Mangtani v. Jagdish Mangtani : It was held in this
case that on wilful neglect by either spouse is a valid ground of divorce on the
basis of desertion.
19
Sarla Mudgal v. union of India, 1995 SCC (3) 635.
20
https://indiankanoon.org/doc/733037/
21
Gita Jagdish Mangtani v. Jagdish Mangtani.
22
https://indiankanoon.org/doc/1026892/
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, or 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.

Marital Rape

Marital rape means the sex with wife without her consent. As marriage
is relation between two persons in which they are physically involved. Many
women suffer from the ill-treat behaviour effects the wife. It is a challenging
issue whether the sex without consent after marriage constitutes an offence
under section 376 of Indian Penal code 1860.

23 24
Farhan Vs. State & Ors : - In this case the court held that the
consent in marriage cannot be consent for ever. However, several Members felt
that the marital rape has the potential of destroying the institution of marriage.
The Committee felt that if a woman is aggrieved by the acts of a husband, there
are other means of approaching the court. In India, for ages, the family system
has evolved and it is moving forward. Family is able to resolve the problems
and there is also a provision under the law for cruelty against women. It was,
therefore, felt that if the marital rape is brought under the law, the entire family
system will be under great stress and the Committee may perhaps be doing
more injustice.

Conclusion

23
Farhan Vs. State & Ors.
24
https://indiankanoon.org/doc/124655100/
 Matrimonial offences are multi-causal and multi-dimensional in nature.
It is impossible to justly address them with a straitjacket method. It transcends
beyond culture, and socioeconomic status. However, there definitely are
underlying common factors. The rising cases of matrimonial offences against
women have their roots deeply ingrained in indifference, and negligence that is
primarily the result of general acceptance of men’s superiority over women,
which is evident from the gender specificity of the nature of these offences.
Among the various kind of offences against women prevalent today are the
marital offences including bigamy, adultery, criminal elopement among others
and the one that is probably the most common offence is cruelty. Over time,
courts have broadened the ambit of the definition to include within it different
instances. The provisions dealing with matrimonial felonies have been framed
in a way that raises a presumption against the accused if certain minimum
requirements are met.