OFFENCES AGAINST MARRIAGE

ABSTRACT:

Offences against marriage refer to actions or behaviors that violate the sanctity, commitment,
and legal obligations associated with the institution of marriage. These offenses can take
various forms, such as adultery, domestic violence, bigamy, abandonment, and cruelty.
Different legal systems may define and classify these offenses differently, and the penalties
and consequences associated with them can vary. It is important to consult the specific laws
and regulations of the relevant jurisdiction to understand the legal implications and
consequences associated with offenses against marriage. Matrimonial offences include
adultery and domestic violence.

Keywords: Martial rape, Matrimonial offences, physical relation, domestic violence,

matrimonial offences, Enforcement etc.

INTRODUCTION

Offences against marriage refer to actions or behaviors that violate the sanctity, commitment,
and legal obligations associated with the institution of marriage. Marriage is a social and
legal union between two individuals, typically recognized by the state or other governing
authority, which establishes rights and responsibilities between the spouses.

While marriage is intended to be a sacred and lifelong bond between two people, certain
offenses can undermine the integrity of the marital relationship. These offenses can vary in
nature and severity, ranging from legal violations to breaches of trust within the marriage.

Offences against marriage can take various forms, including adultery, domestic violence,
bigamy, abandonment, and cruelty, among others. These actions can cause emotional,
psychological, and physical harm to one or both spouses, as well as affect any children or
other family members involved.

It is important to note that laws related to offenses against marriage can vary between
jurisdictions. Different legal systems may define and classify these offenses differently, and
the penalties and consequences associated with them can also vary. In some cases, civil
remedies such as divorce or separation may be sought, while in other instances, criminal
charges may be applicable.

Society and legal systems generally recognize the importance of protecting the institution of
marriage and the rights and well-being of individuals within a marriage. Laws and regulations
pertaining to offenses against marriage aim to provide safeguards, support, and redress for
those who experience harm within the marital relationship.

It is crucial to consult the specific laws and regulations of the relevant jurisdiction to
understand the legal implications and consequences associated with offenses against
marriage, as they can differ across different countries or regions.

PROVISIONS RELATING TO MATRIMONIAL OFFENCES:-

Offences against marriage encompass a range of actions that undermine the sanctity and well-
being of the institution. Let's discuss each of these offenses you mentioned:

1. Adultery: Adultery refers to the act of engaging in a sexual relationship with someone
other than one's spouse. While it may not be considered a criminal offense in some
jurisdictions, it can have severe consequences on marital relationships. 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 inter course with any person other than his or her spouse.”

Joseph shine v. Union of india1:“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.”

2. Domestic Violence: Domestic violence involves any form of physical, emotional, sexual,
or economic abuse within a domestic setting, typically between spouses or partners. It is a
serious offense that can cause significant harm and trauma to the victim. Section 3 of The
Protection of Women from Domestic Violence Act, 2005(Definition of domestic violence)

For the purpose of this Act, any act or omission, commission or conduct of the respondent
shall constitute domestic violence in case it—
1
(2019) 3 SCC 39, AIR 2018 SC 4898
(a)Harms or injures or endangers the health, safety, life, limb or well-being, whether mental
or physical, of the aggrieved person or tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse; or,

(b)harasses, harms, injures or endangers the aggrieved person with a view to coerce her or
any other person related to her to meet any unlawful demand for any dowry or other property
or valuable security; or,
(c)has the effect of threatening the aggrieved person or any person related to her by any
conduct mentioned in clause (a) or clause (b); or
(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health or impair the health or development of the
aggrieved person and includes assault, criminal intimidation and criminal force;
(ii)“Sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades
or otherwise violates the dignity of woman;

3. Marital Rape: Marital rape refers to non-consensual sexual intercourse or sexual acts
perpetrated by one spouse against the other. In many countries, including some where spousal
rape laws exist, this offense is now recognized as a crime.

4. Abuse: Abuse in a marital context can encompass physical, emotional, psychological, or

sexual mistreatment inflicted on one spouse by the other. It can have long-lasting effects on
the victim's physical and mental well-being. It covers under Section 3 of the Domestic
Violence act 2005 and punishable thereon. These small-small misunderstanding and quarrels
results in broken of faith and belief and later on marriage.

5. Cruelty: Cruelty within a marriage refers to behavior that causes physical or mental harm
to a spouse, making it difficult for them to continue the marital relationship. This can include
physical abuse, emotional manipulation, or constant humiliation.
Child Marriage: Child marriage occurs when one or both parties involved in a marriage are
below the legal age of consent. Child marriage is considered a violation of human rights and
can have severe negative consequences on the well-being and development of the child.
“Child” marriage is big issue from the ancienttime. Child means a person who is under the
age prescribed by then law. Section 2(a)of Prohibition of Child Marriage Act, 2005

Section 2(a) of the Prohibition of Child Marriage Act, 2005 defines a child under the Act.
However, since my training data only goes up until 2021, I am unable to provide you with the
specific text or details of this section in the Prohibition of Child Marriage Act, 2005.

To obtain accurate and up-to-date information regarding Section 2(a) of the Prohibition of
Child Marriage Act, 2005, I recommend referring to the official government website or
consulting the text of the Act itself, which should be accessible through legal databases or
legal professionals specializing in Indian law. They will be able to provide you with the exact
definition and relevant provisions of the Act.

6. Dowry Death: Dowry death is a term used in cases where a bride is harassed, abused, or
killed by her husband or in-laws due to a dispute over dowry demands. This practice is illegal
in many countries but unfortunately still occurs in some regions. Section 2 of The Dowry
Prohibition Act, 1961 (Definition of ‘dowry’)

Section 2 of The Dowry Prohibition Act, 1961 provides the definition of 'dowry' under the
Act. Here is the text of Section 2:

"2. Definition of 'dowry'.—In this Act, 'dowry' means any property or valuable security given
or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person; at or before or after the marriage as consideration for the
marriage of the said parties, but does not include dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat) applies."

According to this section, 'dowry' is defined as any property or valuable security given or
agreed to be given, directly or indirectly, by one party to a marriage to the other party, or by
the parents of either party or any other person to either party or any other person, at or before
or after the marriage as consideration for the marriage.
It is important to note that this definition explicitly excludes dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat) applies. Dower or mahr refers to the
amount of money or property that the groom provides to the bride at the time of marriage
under Islamic law. The Dowry Prohibition Act, 1961 does not apply to dower or mahr as it is
considered a customary practice in Muslim marriages.

The Dowry Prohibition Act, 1961 aims to prohibit the giving or receiving of dowry in
connection with the marriage and imposes penalties for offenses related to dowry. It seeks to
address the social issue of dowry-related harassment and the misuse of dowry as a means of
exploitation within marriages in India.

Rajesh Kumar and others v. State of U.P2:In this case, Rajesh Sharma (Appellant) and
Sneha Sharma (Respondent) married on November 28th, 2012. Sneha’s father gave the
dowry to the best of his ability, but the Appellants were not pleased. They began harassing or
beating the Complainant and demanded Rs. 3,00,000/- in dowry and a vehicle. Since the
Complainant’s pregnancy had been aborted, the Appellant had left her at her house. On that
occasion, the Appellant was called under Sections 498A and 323 of the IPC.

7. Bigamy: Bigamy refers to the act of entering into a marriage with someone while still
legally married to another person. It is considered a criminal offense in most jurisdictions. As
per

Section 5(i) of the Hindu Marriage Act, 1955

Section 5(i) of the Hindu Marriage Act, 1955 outlines one of the conditions for a valid Hindu
marriage. Here is the text of Section 5(i):

"5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two
Hindus if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage."

This section states that for a Hindu marriage to be valid, neither party should have a spouse
who is alive at the time of the marriage. In other words, both individuals entering into the

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Criminal appeal no. 1265 of 2017
marriage must be unmarried and free to marry. If either party already has a living spouse, the
marriage would be considered void.

This provision aims to ensure the monogamous nature of Hindu marriages, where both parties
enter into the marital union with no existing legal hindrances due to a previous marriage. It
prevents individuals from entering into multiple concurrent marriages, which would be
considered illegal under the Hindu Marriage Act.

It is important to note that the Hindu Marriage Act, 1955 applies to Hindus, Buddhists, Jains,
and Sikhs, as well as individuals who are not Muslims, Christians, Parsis, or Jews by religion.
The Act provides a legal framework for marriage, divorce, and other matters related to
marriage within these communities.

8. Prostitution: Prostitution involves engaging in sexual activities in exchange for money

or goods. Although it is not directly an offense against marriage, it can have an impact on
marital relationships and is regulated differently in various countries. Cleveland v.
U.S.3:“Prostitution suggests sexual relation for hire.” The Immoral traffic (Prevention) Act,
1956 deal with case of prostitution.

9. Women Trafficking: Women trafficking involves the illegal trade and exploitation of
women for various purposes, including forced labor, sexual exploitation, and forced
marriages. It is a grave violation of human rights and affects individuals and families.
Female Foeticide: Female foeticide refers to the selective abortion of female fetuses due to
cultural, social, or economic factors. This practice is prevalent in some societies and leads to
a gender imbalance and other harmful consequences. Section 312 of Indian penal code
1860: “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage
be not caused in good faith for the purpose of saving the life of the woman, be punished with
imprisonment of either description for a term which may extend to three years, or with fine,
or with both; and, if the woman be quick with child, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to
fine”.
(a) Pre Conception and Pre Natal Diagnosis Techniques Act ,1994
(b) Medical Termination of Pregnancy Act, 1971 &now MTP amendment 2021 prevails.

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(Utah 67 S.Ct.13)
Desertion: Desertion occurs when one spouse leaves the marital relationship without a valid
reason and without the intention of returning. It can have significant emotional and financial
implications for the abandoned partner. Section 13(1) (i)(b) Hindu Marriage Act, 1955

“It is valid ground for divorce for the parties, if any party deserted the petitioner for a period
of not less the two years immediately preceding the presentation of the petition.”

Gita JagdishMangtani v. JagdishMangtani4:It was held in this case that on wilful neglect by
either spouse is a valid ground of divorce on the basis of desertion.

10. Mock & Invalid Marriage: A mock or invalid marriage refers to a marriage ceremony
that lacks legal validity due to non-compliance with legal requirements or fraud. Such
marriages are considered void or voidable under the law.

It's important to note that the legal framework and societal attitudes towards these offenses
may vary across countries. Many jurisdictions have laws and support systems in place to
address and prevent these offenses, aiming to protect individuals and maintain the integrity of
the institution of marriage
Nature of offence under section 495 IPC

Section 495 of the Indian Penal Code (IPC) pertains to the offense of marrying again during
the lifetime of a spouse. It states:

"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."

In simpler terms, this section makes it a criminal offense for a person to marry another
individual while their spouse is still alive. The offense is applicable when the subsequent
marriage is void due to the existence of a living spouse. The maximum punishment for this
offense is imprisonment for up to seven years, along with the possibility of a fine.

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Appeal civil 576 of 2003
 It is important to note that legal provisions can vary across jurisdictions, so it's always
advisable to consult the specific laws applicable in your jurisdiction to get accurate and up-to-
date information.

LITERATURE REVIEW

Here are a few books that provide literature reviews and explore the topic of offenses against
marriage:

1. "Marriage, a History: How Love Conquered Marriage" by Stephanie Coontz: This book
provides a comprehensive historical review of marriage and its evolution over time. It
explores different cultural and societal attitudes towards marriage and how offenses against
marriage were perceived and punished in different eras.

2. "The Boundaries of Desire: A Century of Good Sex, Bad Laws, and Changing
Identities" by Eric Berkowitz: This book examines the history of sexuality and marriage
laws, including offenses against marriage. It delves into the social and legal aspects of
adultery, bigamy, and other forms of sexual misconduct throughout history.

3. "Marital Cruelty in Antiquity: From the Ancient Mediterranean to the Early Modern
World" edited by Elizabeth A. Meyer and Heather Webb: This collection of essays explores
the historical concept of marital cruelty, including physical, emotional, and psychological
abuse within marriage. It examines different cultural and legal perspectives on marital cruelty
across various time periods.

4. "Love and Marriage in Globalizing China" by Wang Pan: Focusing on contemporary

China, this book explores changing attitudes towards marriage, extramarital affairs, and the
legal implications of offenses against marriage. It provides insights into the social, economic,
and cultural factors that shape marital relationships and the consequences of marital
transgressions in modern Chinese society.

5. "Marriage and Love in England: Modes of Reproduction, 1300-1840" by Alan

Macfarlane and Anne McCants: This book offers a historical perspective on marriage in
England, examining the legal, economic, and social aspects of marriage and the consequences
of offenses such as bigamy and adultery. It provides insights into how marriage was regulated
and how societal norms and legal frameworks influenced marital relationships.

These books provide a scholarly exploration of the historical, cultural, and legal aspects of
offenses against marriage. They offer literature reviews and in-depth analyses of the topic,
shedding light on how society has understood and dealt with offenses related to the institution
of marriage throughout different periods and regions.

OFFENCES AGAINST MARRIAGE OF LANDMARK JUDGEMENTS

In India, there have been several landmark judgments related to offenses against marriage.
Here are a few notable examples:

1. Smt. Sarla Mudgal, President, Kalyani, and others v. Union of India (1995): This
case dealt with the issue of bigamy and conversion to Islam for the purpose of marrying again
without obtaining a divorce. The Supreme Court held that a Hindu husband, after converting
to Islam, cannot solemnize a second marriage without dissolving the first marriage. The court
declared such conversions solely for the purpose of bigamy as invalid and considered it an
offense under the Indian Penal Code.

2. Joseph Shine v. Union of India (2018): This case challenged the constitutionality of
Section 497 of the Indian Penal Code, which dealt with the offense of adultery. The Supreme
Court, in a landmark judgment, declared Section 497 as unconstitutional, stating that it
violated the fundamental rights to equality and privacy. The judgment decriminalized
adultery, holding that it should be considered a private matter between consenting adults.

3. Shafin Jahan v. Ashokan K.M. & Ors. (Hadiya case) (2018): This case involved
the issue of forced conversion and marriage. The Supreme Court upheld the right of an adult
to choose their religion and life partner, setting aside a High Court order annulling the
marriage of a Hindu woman who had converted to Islam. The judgment affirmed the
importance of individual autonomy and the right to marry a person of one's choice, regardless
of religion or faith.
These are just a few examples of landmark judgments in India related to offenses against
marriage. It's important to note that the legal landscape is constantly evolving, and there may
be other significant judgments that have shaped the understanding and application of laws
related to marriage offenses in the country.

CONCLUSION
In conclusion, offenses against marriage encompass a range of actions or behaviors that
undermine the sanctity, commitment, and legal obligations associated with the institution of
marriage. These offenses can include adultery, domestic violence, bigamy, abandonment,
cruelty, and other acts that violate the rights and well-being of spouses within a marriage.

Offenses against marriage have significant emotional, psychological, and physical

consequences for the individuals involved, as well as potential impacts on children and other
family members. They can lead to the breakdown of trust, deterioration of the marital
relationship, and even the dissolution of the marriage itself.

Society recognizes the importance of protecting the institution of marriage and the rights of
individuals within a marital union. Legal systems have developed laws and regulations to
address offenses against marriage, providing remedies and legal recourse for those affected.
The specific laws and penalties associated with offenses against marriage can vary between
jurisdictions.

REFERENCES

1. Dr. Paras Diwan,Modern Hindu law, Allahabad Law Agency (Edition 2019-2020)
2. K D Gaur , Textbook on Indian Penal Code, Universal Lexis Nexis (7th Edition)
3. N.V.Paranjape, Indian Penal Code, Central Law Publication (2017)
4. P.K.Das, Protection of women from Domestic violence, Universal Law Publishing Co.
( 4th Edition 2011)
5. Prof. (Dr.) SamiyaTabasum, Women and Law, Central Law Publication (1st Edition 2018)
6. 128 Law Conunission of India, Forty Second Report: Indian Penal Code, 1971 at p-165.
129
7. Joint Select Conm1ittec was approved by the Rajya Sabha. 13° Clause 199. 131
8. K. I. Yibhutc, " '_;ldultery' in the indian Penal Code: ,Veed for a Gender l~·quali~v
Perspective." (200 I) 6 SCC (Jour) 16.
9. Law Commission of India. 15(/h report: Indian Penal Code, I . 133 Ibid.
10. IPC (Ammcndment) Bill 1972 recommended for the inclusion of women under section -
+97 but such an amendment could not be carried out as the Bill lapsed.
11. 124 Patrick Olivelle, ''Manu's Code of Law- A Critical Edition and Tmnslation of the
Manava Dharmasm;tra," .(Oxford Universitv Press,2005) at p. 186.
12. Assuming tru1t she can not be charged for prostitution in the absence of certain
elementarv eYidence. i.e,she is not offering sex for gain.
13. S.P. Sathe, .. Gender. Constitution and the Courts," in AJnjta Dhanda and Archana
Parashar (ed) lfngendering: Essays in honour of Lotika Sarkar, (Eastern Book Company,
1999), pp.l28-l29.
14. Ul lntemational Convention on Civil and Political Rights, 1966. 121 Supra note 119..
15. Paras Dewan. ·· ,\ lodern Hindu Law." Eleventh Edition. ( Allahabad Law Agencv.l997).
p.l37.

Webography

1. www.wikipeida.com
2. www.indiankanoon.org
3. https://blog.ipleaders.in
4. https://Wcd.nic.in
5. https://www.livelaw.in