When can the charge under Section 493 of IPC be attracted? What is the difference between the essential ingredients of Section 375 (Fourthly) and Section 493 of the Indian Penal Code, 1860 (hereinafter IPC)? Without sounding sacrilegious, out of the two which provision could have been invoked today against Lord Indra for deceitfully cohabiting with Ahalya, the wife of Sage Gautam as mentioned in our Holy Book of Ramayana? Through the present article, I make an attempt to bring out the difference as to when an act of consensual sexual intercourse on the pretext of marriage would attract the offence of Rape under Section 375 (fourthly) and Deceitful Cohabitation by inducing a belief of lawful marriage under Section 493 of IPC.

Analysis Of Section 375 (Fourthly) And Section 493 Of IPC

Section 375 (Fourthly) of IPC states:
A man is said to commit rape if he:
Fourthly: With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

And on the other hand, Section 493 of IPC reads as follows:
Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. 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.

A bird's eye view of the aforementioned provisions may give an imprint of the two sections slightly overlapping with each other and when the charge of Section 493 could be brought home has been clearly elucidated in the recent case of Arun Singh v. State of U.P. (2020) 3 SCC 736.

Analysis of Arun Singh v. State of U.P. (2020) 3 SCC 736

Nipping out the irrelevant details, the facts of the present case involve an alleged deceitful conduct on the part of the accused, where he entices her betrothed (complainant) to engage in cohabitation with him stating to her that everything is finalized, even the marriage date is settled, only pheras are left.

Having said this, the accused takes the girl to her room in her house and cohabits with her. Subsequently, due to allegations levelled by the complainant that the accused had raised the demand for dowry the marriage does not take place. As a result, the complainant files a complaint against the accused under Section 493 of IPC for deceitfully cohabiting with her.

The Apex Court held that in order to bring home the charge under section 493 of IPC, it needs to be demonstrated that

1. A Man has deceitfully caused a woman;
2. who is not lawfully married to him;
3. to believe she is lawfully married to him;
4. then engaging in cohabitation with him

the Court also placed reliance on the judgment of this Court in Ramchandra Bhagat v. State of Jharkhand (2013) 1 SCC 562 that if a woman is induced to change her status from that of an unmarried to that of a married woman with all duties and obligations pertaining to a changed relationship and that result is accomplished by deceit, such deceived woman can bring the charge under section 493 of IPC.

Also, it is not necessary to establish the factum of marriage by personal law but proof of inducement by a man deceitfully to a woman to charge to change her status from that of an unmarried to that of a lawfully married woman and then make that woman cohabit with him establish is an offence under section 493 of IPC.

the court also gave a definition of deceit which means a false statement of fact made by a person knowingly and recklessly with the intent that it shall be acted upon by another who one believing the same after acting thereupon suffers an injury.

Thus, the essence of section 493 is the practice of deception by a man on a woman as a consequence of which the woman is led to believe that she is lawfully married to him although she is not and then make her cohabit with him.

The Difference Between The Two Provisions

The basic difference lies in the word Impersonation. The charge of Section 375 (Fourthly) would be attracted when the accused impersonates to be the another man whom the wife believes to be her husband and in consequence cohabits with him consensually.

The position above would be best explained by reference to a mythological incident. Lord Indra attracted by the beauty of Ahilya impersonated himself as sage Gautam, who was the real husband of Ahilya, and when he was out Indra had sexual intercourse with her. Ahilya gave the consent because she considered Indra to be another man[1], Sage Gautam, her husband. This would amount to the offence of Rape committed by Lord Indra as per IPC.

Whereas, an offence under Section 493 can be attracted when the same man without impersonation causes the woman to believe that she is lawfully married to him and then engages in cohabitation with her.

End-Notes:

1. S'hnen-Thieme, Renate (1996). "The Ahalya Story Through the Ages". In Leslie, Julia. Myth and Mythmaking: Continuous Evolution in Indian Tradition. Curzon Press. ISBN 978-0-7007-0303-6