The Indian Penal Code, 1860 in its Chapter XX deals with offences which pose a threat to the sacrosanct tie of Marriage in Indian society. This chapter criminalizes such offences to create a deterrent in the society, seeking for the mitigation of crimes prejudicing the sanctity of the marital fidelity. The said Chapter extends from Section 493 to 498 of the Code, and the punishments thereof are provided within the Sections inter se.

The six offences punishable herein are:

• S/493 Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
• S/494 Marrying again during lifetime of husband or wife.
• S/495 Same offence with concealment of former marriage from person with whom subsequent marriage is contracted
• S/496 Marriage ceremony fraudulently gone through without lawful marriage
• S/497 Adultery
• S/498 Enticing or taking away or detaining with criminal intent a married woman

This paper analyses and explains the offence defined and punished under Section 493 of the Code with the developments in the application of the same by enumerating appropriate decisions by the Indian Judiciary. This paper also aims to suggest possible additions which must be introduced in the Code by way of a Criminal Law Amendment.

The Offence As Defined By The Act 45 Of 1860:

493. 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.

The code uses a rather simple language while defining the offence, keeping in view every possibility which might arise during the commission of which. At the outset, it specifically spells out that the offender SHALL be a man. The Code has provided with the definition of 'man' under Section 10, where by a 'a male human being of any age' is characterized as 'man'. It also secures the victim to be a Woman, as has been secured for various other offences within the Code, depriving a man from instituting a suit in case of an inverse circumstance.

To constitute this offence, certain requisites need to be fulfilled, first of which is the establishment of the fact that the man accused of the commission was not the lawfully married husband of the said woman. If the man succeeds in inducing such a belief that he, indeed, is the lawfully married husband of the said woman, so as to cohabit, i.e., live together with the woman, or engage in sexual relation with the woman, he is said to have committed the offence punishable under Section 493 of the Penal Code.

Thus, concisely, the following ingredients must be present and proved for conviction under this Section:

• Man causing deceit
• Belief of Lawful marriage induces.
• Followed by cohabitation or sexual intercourse under the said belief.

In the continuance, the Provision lays down the punishment for the man, if proved guilty under this section. The term of imprisonment is capped at 10 years, above which no punishment shall be granted. The imprisonment may be Simple or Rigorous in nature, which is left on the discretion of the convicting Court.

Nature Of This Offence Under Code Of Criminal Procedure, 1973:

Every offence defined in the Statutory Criminal Law, or the Indian Penal Code, 1860 has been classified by the Procedural Criminal Law, or the Code of Criminal Procedure, 1973 into three categories, viz., Cognizable or Non-Cognizable, Bailable or Non-Bailable, and lastly, the Court in which the offence is triable, as mentioned in Schedule 1 of the 1973 Code.

The offence under this section is NON-COGNIZABLE, meaning that the accused cannot be arrested without a warrant in hand by a Police officer, and no investigation can be made into the merits of the case unless permitted by the Magistrate.

The Bail to the accused is not a matter of right if the offence is punishable under Section 493 of the Code of 1860, thereby making it a NON BAILABLE OFFENCE. However, the general exceptions of the provisions of Bail, as given in the Procedural Code, apply to this offence as well. Thus if the 'man' is under 18 years if age, or Lunatic, or sick, or if the Court finds in its satisfaction that Bail may be given, the accused may be forthwith released on Bail. The exception of the accused being a woman has been ruled out for obvious reasons.

The offence is triable by the Judicial Magistrate of First Class of the Trial Court and is Non-Compoundable under Section 320 of the Criminal Procedure Code. The non-compoundability of the offence provides for the general idea which one may construe as to its nature in respect of the Society, for, the offences which are considered crimes against the Society are ostracized from the facility of Compounding.

Developments In The Judicial Meaning Of The Offence:

In 2006, the Supreme Court was posed with the question of exploring the meaning of the offence punishable under section 493 of the Penal Court. The case was a Criminal Appeal to the Supreme Court of India under the case title Ram Chandra Bhagat v State of Jharkhand [1].

The accused was convicted by the Jharkhand High Court under section 493 of the Indian Penal Code (IPC, from hereinafter), sentencing him to three-month sentence along with a fine of Rs. 500/-. However, due to the dissent of one of the Judges of the Bench, the Accused was of the belief that conviction may still be set aside, and resolved for an Appeal to the Supreme Court of India.

In the decision for the appeal, Justice Anil R. Dave narrated the facts in the such words as:
"…the accused had acquaintance with the complainant, which eventually developed into intimate relationship with her. He, by his actions, induced the complainant to believe that she had become the lawful wife of the accused in furtherance of which they had stayed together for a period 9 years as a married couple and during which the complainant had conceived two children -thereafter the allegation is that the accused had chucked the complainant out of their house…"

The description of the facts is clear to the extent that the marital relation, if at all it existed, continued for a period of Nine Years, during which the Complainant had conceived two children. After perusal of the evidence, the Court found that the couple had signed a marriage registration form, creating a legally proclaimed marriage, however, no rituals were carried out in concurrence with the Hindu Religion. It was observed that the accused had deceived the complainant of the unlawful marriage by way of that document.

The above evidence was found sufficient by the Appellate Court to reach the conclusion that the offence under Section 493 IPC was, in fact, committed and upheld the judgement of the Jharkhand High Court, thereby dismissing the appeal.

In a similar case, Kartick Kundu vs The State[2], the Court discussed the nature of the words "deceit" and "belief" as used in the wordings of the Section 493 and dismissed the appeal on ground that the girl being minor at the time of the alleged deception is immaterial while deciding for the conviction under this Section. The Facts of the case go as follows:

"The petitioner and the accused were childhood friends, whose friendship developed to the stage that they resolved to marry. The family of the accused, however, did not consent to such marriage. This led to their decision to enter into the marital tie by way of Registration. The girl willfully conformed and signed the form, believing that such signature will pronounce them lawfully married couple.

Meanwhile, the family of the girl was concerned of her unannounced absence, for it was far from their knowledge that the couple had been to the Marriage Registrar Office. Subsequently, the couple lived in the same house, and shared the same bed, on the pretext of them being a lawfully married couple.

Sexual relationships followed. due to some circumstances pertaining to their married life, the petitioner happened to inquire at the Registrar Office of the existence of the paper which validated their marriage, and met with futility, thereby instituting charges against the accused, under Section 376 and 493 of the Penal Code of 1860"

The Court of Sessions convicted the Accused and sentenced him to punishment in compliance with the punitive provisions under the Section. On Appeal, it was pleaded that the charge under section 493 was null and void as no deception was practiced thereof, as the victim was a minor of 18 years of age, and thus excluded from the ambit of the Provisions of the said Section. The Court reflected on the words "deceit" and "belief", and was of the view that,

'…The essential words of accent and emphasis in this section are the words "deceit" and "belief". It is not a real thing. The marriage is not real. What is done is that by practice of deceit a man makes a woman think that she is her lawfully married wife and by that deceit causes the woman to have sexual intercourse with him and that also the section says "in that belief". Whether the woman upon whom this deceit is practiced by the man is a minor or a major is, therefore, irrelevant to the construction and interpretation of the section[3]'

The contention by the side of the accused for the woman being a minor was vehemently refused by the Court, and the sentence passed by the Lower Court was upheld.

A case as recent as of 2020 dealt with the presence of ingredients required for the commission of the offence mentioned in the discussed Section. (Arun Singh v State of Up[4]) In this case the Respondent's daughter was to be married with the Accused and was accordingly planned.

This led to the couple occasionally getting together. Subsequently, the Accused induced the victim to a hotel room, thereby establishing a sexual relationship with her. Eventually, he began demanding a handsome amount for dowry in as consideration for the marriage. This Complaint was filed in vain. On coming to know that the marriage of the appellant was settled with some other girl for handsome of money, the FIR was lodged under Section 493 of IPC and Section 3 and 4 of Dowry Prohibition Act against the Accused.

The court was of the opinion, that although the charges under sections 3 and 4 of the Dowry Prohibition Act may be considered valid, but the charge under Section 493 could not be maintained for the reason that the essential ingredients for constituting the offence mentioned thereunder were apparently absent. There was no intended deception on part of the accused for a lawful marriage to establish the sexual relations thereof. Thus, it was established that the allegations made in the FIR relating to Section 493 are not of merit.

Statutes Other Than Indian Penal Code Dealing With Such Offence

The Penal Code exclusively deals with the offence of fraudulent marriage under Section 493 such that no other Indian law deals directly with the said offence. Meaning that there is no other Statute in India which penalizes the offence whereby a man deceitfully induces a woman to believe him to be her lawful husband, thereby cohabiting with her.

A reason for such exclusion may be the highly specific nature of the said offence, unlike the offence of Bigamy, which is punishable under IPC, in addition to the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

Even though, there are no direct provisions as to the offence discussed above in any other statute, but there are statutes which assist the Courts to decide upon a case in respect of any offence committed under this Section.

In case of a marriage in The Hindu religion, the Hindu Marriage Act of 1955 defines Void and Voidable marriages, which is a key factor in determining the lawfulness of a marriage which is alleged to be fraudulent.

The Special Marriage Act, 1954 states the procedure to be followed for engaging in a marital bond without the compliance of the customary rituals of any religion. Such provisions prove fertile in determining whether the modus operandi of the accused in a case whereby he is accused of entering into a marriage which is alleged to be deceitful was lawful or not, or whether an omission was made during the procedure so as to practice deception.

Thus, these statutes, though not dealing directly with offence in nature of the offence defined in Section 493 of the Indian Penal Code, are an aid to the justice system to decide upon any underlying issue beyond reasonable doubt.

Suggesting Reforms:
The Indian Penal Code has been considered, even by the Law Commission of India, to be a highly gender-biased Code to have been formulated. The origin of the Penal Code dated back to the British Era, and to the time whereby the Society was dominated by Men, and the Women were blatantly ignorant of their rights and privileges. Thus, Lord Macaulay inculcated such offences which would exclusively protect the 'woman-kind' against any crime committed by men upon them.

However, as a dynamic society, the Indian society has evolved a great way since 1860. Thus, it is not only the women who might be put to jeopardy, rather, there have been instances that same crime was committed upon a man, but no remedy exists thereto, due to lack of any provisions in the law to safeguard men against offences exclusively defined for women.

Therefore, in any subsequent Criminal Law Amendment, such provisions must be included in the Penal Code which protects even the men against offences hitherto not provided for them.
As to the provisions of Section 493 of the Penal code, it would be preferrable to include such wordings as follows:

493. Cohabitation caused by a man [or woman] 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, [or where the same is done by a woman with a man], shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

End-Notes:

1. Criminal Appeal No.439 of 2006
2. 1967 CriLJ 1411
3. P Mukharji, J., Calcutta High Court.
4. (CRL) NO. 5224 OF 2017