This article is written by Anushka Yadav from the Faculty of Law, Aligarh Muslim University. This is an exhaustive article which deals with the provisions relating to the offense of Deceitful and Fraudulent marriage under the Indian Penal Code.
What if your marital partner is a fraud? What action can be taken against him/her? What if you believe that you are married to your partner but actually you are not?
These are some questions that may worry about married couples. The fraud or deceit by a partner in a marriage is considered as a criminal offense under the Indian Penal Code.
Offenses relating to marriage are dealt with under Chapter XX of the IPC. It includes offenses of Mock or Invalid marriage (Section 493 and 496), Bigamy (Sections 494 and 495), and Criminal elopement (Section 498). A mock or invalid marriage is deceitful or fraudulent marriage. Section 493 deals with the offense of deceitful marriage and Section 496 deals with the offense of fraudulent marriage.
Provisions relating to deceitful marriage under IPC
The offense of deceit in marriage is defined in Section 493 of the Indian Penal Code. If a man deceit a woman to believe her that she is lawfully married to him and believing that she cohabitates and has sexual intercourse with him, then the man is said to have committed the offense according to Section 493 of the IPC. Such a man is to be punished under this Section.
This Section protects the right of such a woman who is kept as a concubine by a man while she is in a belief to be a lawful wife of that person.
Deceit was defined in the case of Ram Chandra Bhagat v. the State of Jharkhand, (2013) 1 SCC 562 as a “false statement of fact made by a person knowingly or recklessly with the intent that it shall be acted upon it and thereby suffers an injury.”
Such an offense can also be punished as the offense of rape under Section 375 (4) of the IPC.
For the offense under Section 493 of the IPC, the following ingredients are to be proved:
- The offense is specifically to be caused by a man;
- Such a man deceits a woman to have a false belief that she is lawfully married to that man;
- Such women must have cohabited or had sexual intercourse with such men.
Deceit intention is an essential element to be proved on the part of the husband. The result of such deceit is that the woman is led to believe that she is lawfully married to him, but in reality, she is not. In the case of KAN Subrahmanyam v. J Ramalakshmi, (1971) Mad LJ (Cr) 604, it was observed that such deceitful intention must exist on the part of the husband at the time of marriage. This means if the husband is having no deceitful intention at the time of marriage and he believes that he is lawfully marrying the woman then he would not be liable under Section 496. To attract the offense under this Section, a man must know at the time of marriage that such marriage is not valid.
The deception caused by man must lead the woman to the false belief of being lawfully married to such a man. Only deceit intentions on the part of the husband are not sufficient. It was observed in the case of Moideen v Kutty Haji v. Kunhikoya, AIR 1987 Ker 184 that there must also be inducement by him to the woman to cohabit or have sexual intercourse with him.
If the husband has not put the wife in false belief, then he is not liable to be convicted of this offense.
If the woman knows the fact that she is not legally married to a man she is cohabitating with and then also continues to cohabit with him, then she is not in a false belief. In such a case, she is not going to get the benefit of this Section. In the case of Amruta Gadtia v Trilochan Pradhan, (1993) Cr LJ 1022 (Ori), the Court observed that the woman was aware of the fact that she was not lawfully married to the man she was cohabitating with and then also she allowed the man to had sexual intercourse with her. The Court held the man not liable for the offense under Section 493. The Court cleared that cohabitation or sexual intercourse by a man with a woman who is not lawfully married is not the only criterion to punish a man of this offense. All the ingredients, including false belief in which woman is kept by such man, shall be fulfilled in order to punish him under this Section.
Cohabitation or Sexual Intercourse
Another essential element that is to be proved is cohabitation or having sexual intercourse. The victim woman, believing herself to be lawfully married to her husband, must have cohabited or had sexual intercourse with her husband. This condition is required to be proved to attract liability under Section 493.
The scope of Section 493 of the IPC is that it punishes a man not only for performing a marriage which turns out to be invalid but it punishes him for inducing a woman cohabitation or having sexual intercourse with her making her believe that such marriage was valid. The scope of the offence is limited to the extent of a man acquiring a woman’s body by deceitfully by making her believe that such acquiring was taken place by jus mariti (the right of the husband over his wife taken by lawful marriage).
In the case of Raghunath Padhy v. State, AIR 1957 Ori 198, it was observed by the court that inducement to cohabitate or have sexual intercourse is necessarily done by a man to be liable for the offence under Section 463. Only the fact of deception by a man to make the woman have a false belief of being lawfully married to the man is not sufficient.
The punishment for the offence defined under Section 493 of the IPC is given under the same Section. Imprisonment of either simple or rigorous nature, for a term of maximum ten years, in addition to fine is prescribed in the Section.
Ram Chandra Bhagat v State of Jharkhand
The facts Ram Chandra Bhagat v State of Jharkhand, (2013) 1 SCC 562 were that a man had promised a woman to marry and had an agreement to marry her eventually. On the belief of such promise, the woman cohabitated with the man for nine years.
The court was considering the question of whether the promise was an inducement to believe in marriage or not. The court held that it was not an inducement to the belief of marriage and man was not held liable.
Ravinder Kaur v Anil Kumar
The facts of Ravinder Kaur v Anil Kumar, AIR 2015 SC 2447 were that a man obtained the ex-parte divorce decree and did not inform his wife about it. The matrimonial relationship between them was ended between them due to that decree and the wife was not known to the fact. She continued to cohabitate with him on the belief that she was still married to him. The wife came to know the truth when his husband married another woman.
The court held that it cannot be said that the husband deceived his wife to believe that she is lawfully married to him and held the man not liable for the offence under Section 493 of the IPC.
However, I highly criticised the interpretation of this judgement. It was crystal clear in the case that the husband deceived his wife by not informing her that the matrimonial ties between them have been ended. This automatically led the wife to believe that she is lawfully married to him and cohabitated with him.
Moideen Kutty Haji v Kunhikoya
The court cleared in the case of Moideen Kutty Haji v Kunhikoya, AIR 1987 Ker 184 that according to this Section a man is not liable only for cohabiting or having sexual intercourse with a woman not lawfully married to him. For the liability under this Section, it must be proved that such man has induced the woman to cohabitate or have sexual intercourse with him in the belief that she is lawfully married to him.
Provisions relating to fraudulent marriage under IPC
Section 496 defines the offence of fraud marriage. A person who with fraud or dishonest intention of knowing to the nature of marriage ceremony as invalid goes through such a ceremony is liable to be convicted under Section 496.
Such mock or fraud marriages are punished under this Section.
To constitute the offence of fraud marriage under Section 496 of the IPC, the following essential elements must be fulfilled:
- A man or a woman must have a fraud or dishonest intention on his or her part;
- With such intention, he/she must go through a marriage ceremony;
- He/she must have knowledge of his/her part that such a ceremony does not constitute a valid marriage.
Mens rea is the essence of the offence of fraudulent marriage. It is very clear that this offence may be committed by a man or a woman.
The scope of this Section is limited to punishing a man who with fraud intention constituted a marriage ceremony that in no way constitutes a valid marriage and that makes the other party believe that a valid marriage has taken place. It does not require cohabitation or sexual intercourse to take place to complete the offence as required under Section 493.
In the case of Queen v. Kudum, 1864 WR (Cr) 13, it was observed by the court that mens rea is the essence of the offence under Section 496. It must be known by the offender that the marriage in which he/she is entering is an invalid marriage. The knowledge of this fact is necessary. If in any case, the accused is not knowing the fact that the marriage is not valid then he is not liable to be punished.
The punishment of the offence under Section 496 is given under the same Section. The punishment prescribed in the Section is imprisonment of either simple or rigorous nature, for a term of maximum seven years, in addition to a fine.
Shiekh Altmuddin v Emperor
In the case of Shiekh Altmuddin v. Emperor, 4 Cri. LJ 152 where the marriage ceremony which is gone through is invalid by the reason of existence of the previous marriage, then Section 496 shall not be applicable. It is subjected as an offence of bigamy which is dealt with under Section 494 of the IPC.
Kailash Singh v State of Rajasthan
The facts of the case of Kailash Singh v. State of Rajasthan, 1982 Cri. LJ 1005 was that an accused did a second marriage during the pendency of appeal against the decree of divorce. However, he did not conceal the fact from the girl.
The court held the accused not liable under Section 496 because his act was not dishonest.
The Distinction between Section 493 and 496
Both Sections are different from each other in certain respects. They look the same in some aspects but actually, they are not.
Marriage is a pure relationship. Deceit and fraud are serious offences that can make a tie of marriage impure. Such offences need to be stopped to protect such a pure relation. IPC deals with such offences in a good way. The institution of marriage is protected by IPC in this way. It is assumed that marriage is a personal matter. So, the state needs not to interfere with it. But a practice of fraud or deceit makes it necessary for the state to enter in the matter otherwise it will adversely affect the institution of marriage.
- KI Vibhute; PSA Pillai’s Criminal Law; Lexis Nexis, Gurgaon, Haryana (2019).
- Prof. S.N. Misra; Indian Penal Code; Central Law Publication, Allahabad, Uttar Pradesh (2018).
- Fraudulent or unlawful marriage under IPC, available at: www.journal.lex.warrier.in (last assessed at Jul 3, 2020).
- Chapter (iii), deceitful or fraudulent marriages under Indian penal code, available at: https://shodhganga.inflibnet.ac.in (last assessed at Jul 3, 2020).
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