child marriage

This article is written by Ilashri Gaur, pursuing B.A LLB (Hons.) from Teerthanker Mahaveer University (CLLS). This article deals with the provisions regarding the offences against marriage with the judgment of the Supreme Court.

Introduction

Let us begin with the meaning of ‘prosecution of offense’, it means the process of holding a trial against a person who commits an offense or who is guilty for his actions. Marriage is a process in which two-person ties together with all the rituals and traditions and becomes partners. But nowadays it commonly happens that marriages are not working due to various reasons like dowry problems, adultery, cruelty, etc.

There are various laws and acts regarding the protection of marriage and laws relating to the offenses against marriage as given under the Code of Criminal Procedure and the Indian Penal Code.

Offences against marriage

There are many offences against marriage:

  • BigamySection 494 of the Indian Penal Code deals with bigamy. It means that when someone is already married and even though he/she goes on to marry someone else. But in such cases, the marriage is considered void if the marriage takes place during the life of the partner and the partner shall be punished with the imprisonment and also be liable to pay the fine.
  • AdulterySection 497 of the Indian Penal Code deals with adultery. It means that when the married spouse is sexually involved with another spouse who is not the spouse of the same then that person is liable for the punishment of five years.
  • CrueltySection 498-A of the Indian Penal Code deals with cruelty. It means that the unjustifiable conduct of a character can cause danger to life and cause unstable health of women whether physically or mentally. And the punishment will be imprisonment and fine.
  • Dowry-deathSection 304-B of the Indian Penal Code Act deals with the dower- death. It means the death of a woman by burning or injury under the normal circumstances after the marriage due to the demand for dowry. Whosoever commits dower- death shall be punished for not less than seven years.
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Prosecution of Offences against Marriage under CrPC

In CrPC Section 198 deals with the prosecution of offenses against marriage. This section stated below:

  • Except a complaint made by the person aggrieved by the offense. No court will take cognizance of an offense punishable under chapter 20 of the Indian Penal Code.

It says that-

  1. The person who is a lunatic or an idiot person or below the age of 18 years and unable to make a complaint due to sickness or infirmity and a woman cannot force to appear in public according to the local customs and manners.
  2. Any person who is serving in the Armed Forces of the union and at the same time he is also the husband then if his commanding officer prevented him from obtaining leave of absence to enable him to make a complaint.
  3. When the wife is punishable by an aggrieved offense under Section 494 and Section 495 of the Indian Penal Code then the complaint with the permission of the court which was made by her father, mother, brother, sister, son or daughter on behalf of her or by any other person related to her by blood, marriage or adoption.
  • As per the point (1) mentioned above, only the husband can be deemed to be aggrieved by any offenses punishable under Section 497 and Section 498 of the Indian Penal Code. It says that in the absence of the husband, the person who cared for his wife at that time when such offense committed may with the permission of the court can make a complaint on his behalf.
  • If the person is below the age of 18 years or he is an idiot or lunatic then the complaint can be made on behalf of him by some other person. Such a person needs not be appointed or declared by a competent authority to be a guardian of the minor or lunatic person and if the court is satisfied then there is a guardian appointed for the same. The court before granting the application for leave, gives a cause notice to the guardian and gives him a reasonable opportunity of being heard.
  • The authorization will be provided in the written form. It will be signed or otherwise provided as clear evidence by the husband. It also contains a statement that will affect that he has the knowledge of the allegations due to which the complaint needs to be founded. The authorization will also be countersigned by his commanding officer. It will have an attachment certificate by that officer. Such type of certificate should contain the reason for leave of absence, cannot be granted to the husband.
  • In the above mentioned (4) point only those documents will be considered as authorized that comply with the provisions. Any document claims to be certified required by that subsection. Unless it shall be proved and be presumed to be genuine and shall be received in evidence.
  • The court shall take cognizance of the offense under Section 376 of the Indian Penal Code. which says that such offense consists of sexual intercourse by a man to his own wife and the wife is under the age of eighteen years and if more than one year pass from the date of the commission of the offense.
  • The provision of this section applies to the abetment or to attempt to commit an offense as they apply to the offenses.

Prosecution of offenses under Sec 498A of IPC

Section 498A was introduced in the year 1983 to protect the married from being forced to cruelty by the husband or his relatives. The punishment extends to 3 years and the fine has been prescribed. The expression of cruelty has been defined in wide terms. This includes harm related to physically or mentally to the body or to the health of the women and indulging in such acts of harassment with a view to obtain her with force or her relations to meet any unlawful demand for the property or valuable assets. Harassment for dowry falls within this section. And if the women commit suicide due to intense pressure than it will also be considered as ‘cruelty’.

This section deals with the cruelty to married women. It defines cruelty as:

  1. If any willful act conducted which is of such a nature that it is likely to make a woman commit suicide or cause very serious injuries or danger to her life, limb, or health (whether physically or mentally) of the woman.
  2. If any harassment of women is done whether it is in the view of coercion to meet any unlawful demand for the property or for any valuable assets or is in the account of her failure to meet such demand.

Cognizance of offenses under Section 376(B) of IPC

Section 376B of the Indian Penal Code deals with the sexual intercourse by husband upon his wife during separation. It says that any person who has sexual intercourse with his own wife, who is living separately from her husband under a decree of separation and done without her consent, shall be punished with the imprisonment of either a descriptive term which shall not be less than 2 years but which may be extended to seven years and will also be liable to pay the fine.

                   

Landmark Judgments

The landmark judgments given by the supreme court regarding adultery. Those are: –

The first judgment was given by the Supreme Court in the case of  Yusuf Aziz v. The State of Bombay in 1951. In this, the petitioner said that the adultery law violates the Fundamental Right of equality which is provided in Section 14 and Section 15 of the Indian Constitution.

The ruling argument in the court hearing was that section 497 which is conducting the adultery law, discriminated against men by not making women equally guilty in an adultery relationship. It was also said that adultery law gave a license to women to commit further crimes.

After 3 years in 1954, the Supreme Court said that Section 497 was valid. It was held that section 497 did not give any license to women to commit adultery. The judgment made it clear by saying that making a special provision under Article 15(3) of the Indian Constitution was made for the women to escape from culpability as the Indian Constitution allows such laws.

And it was also said by the Supreme Court in the judgment that man will be considered as the seducer and not the woman. The Supreme Court also stated that women can only be the victim of adultery and not the perpetrator of the crime under section 497.

The argument was made to reject that the adultery law was discriminatory against men. However, it is declared by the court that women will only be considered as a victim in the occurrence of the crime of adultery and the court did not allow them to file a complaint. But now it is a ground for the divorce and it is not considered a criminal offence by the case of Joseph Shine vs Union Of India, 2018. 

The second judgment was given by the Supreme court in the case of the Sowmithri Vishnu vs Union of India case of 1985. In this case, it was said by the judges that the women will not be included as an aggrieved party in the name of making the law. It was also explained why a woman should not be involved in prosecution in the cases of adultery.

The Supreme Court said that the men were not allowed to sue their wives for the offenses of adultery in order to protect the holy of marriage. And similarly, women are also not allowed to prosecute their husbands. The judgment continues to have the offense of adultery, as a crime committed by one man against another.

The Supreme Court also rejected the argument that unmarried women should be brought under the scope of section 497 of the adultery law. It was stated in the argument that if an unmarried man establishes an adultery relationship with a married woman then he is liable for the punishment but if an unmarried woman establishes a sexual relationship with a married man then she would not be liable for the offense of adultery even both side disturbs the importance of marriage.

The Supreme Court said that bringing an unmarried woman in the range section 497 of adultery law would mean a move by a woman against another woman. And it remains unsolved.

The third judgment was given by the Supreme Court in the case V Revathy vs Union of India, 1988. In this case, it was held by the judges that not including women in the prosecution of adultery cases promoted social good but also it offered multiple chances to make up and keep the importance of marriage safe.

The Supreme Court believed that the adultery law was a ‘’shield rather than a sword’’. The court held that the existing adultery law did not breach upon any constitutional provision by the restriction of section 497 to men.

Besides these three judgments by the Supreme Court, there were two more important legal views in connection with this law.

The Supreme Court bench that dismissed a plea which is challenging, section 497 had justice YV Chandrachud on it. The Supreme Court bench which was hearing the adultery law case had his son Justice DY Chandrachud on it. He said that women could not be treated as commodities by leaving them to the discretion of their husbands in giving consent to the matters related to adultery. The Supreme Court held that section 497 was only favourable to women and he dismissed the argument the adultery law discriminated against the men. 

Conclusion

The Act provides various protection regarding the crime against marriage. There are many offences like bigamy, cruelty, dower-death, adultery, etc. which are protected under the Indian Penal Code and CrPC. As compared to the earlier time there is an improvement regarding the laws and orders for the women but even though there are issues regarding marriages which creates a loophole.

The acts which are for the woman should be applied strictly and the government should ensure that the acts which are there for women must be successfully protecting the woman and their rights. The government and NGOs should work together for the welfare of the women and stop offenses against marriages which usually a women face.


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