1. Introduction: Offences Relating to Marriage
Offences relating to marriage are criminal acts that affect the legality of marriage, marital relationships, dignity, safety, and rights of individuals within or connected with a marriage. The Bharatiya Nyaya Sanhita, 2023 (BNS) addresses various offences such as dowry death, cruelty by the husband or his relatives, bigamy, fraudulent marriage, and offences involving women being compelled or induced into marriage.
These provisions aim to protect marital dignity, personal liberty, bodily and mental well-being, and the lawful institution of marriage. They also provide legal protection against conduct that exploits or harms women within matrimonial relationships.
2. Connection with Dowry-Related Offences
Dowry-related offences form an important part of offences relating to marriage. Dowry death, cruelty, dowry demands, and giving or taking dowry may arise from the same matrimonial circumstances, although each offence has its own legal ingredients. Therefore, dowry-related conduct may attract provisions of both the BNS and the Dowry Prohibition Act, 1961, depending on the facts of the case.
3. Definition of Dowry – Section 2, Dowry Prohibition Act, 1961
Section 2 of the Dowry Prohibition Act, 1961 provides the legal definition of the term “dowry.” In simple terms, dowry means any property or valuable security that is given or promised in connection with a marriage.
The definition is broad. It covers property, money, valuable securities, or other valuable items given directly or indirectly. The property may be given by one spouse to the other, or by the parents of either spouse, relatives, or any other person to either spouse or even to another person.
Importantly, dowry is not limited to something given at the time of marriage. Under Section 2, a demand or transfer can fall within the definition if it is made before, at the time of, or after the marriage, provided that it has a connection with the marriage.
4. Dowry Death
Section 80 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offence of dowry death. The provision is closely connected with the concept of cruelty or harassment for dowry and creates a serious criminal liability where a woman dies in suspicious circumstances within seven years of marriage.
Section 80(1): When is a death called “dowry death”?
“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage…”
This part lays down the first requirement of dowry death. The woman must have died within seven years of her marriage, and her death must have occurred because of burns, bodily injury, or otherwise than under normal circumstances.
The expression “otherwise than under normal circumstances” is important because dowry death is not limited only to cases where the woman is physically burned or suffers a visible bodily injury. It can also cover other unnatural or suspicious circumstances, depending upon the facts of the case.
The period of seven years from the date of marriage is a statutory requirement. Therefore, where the death occurs after seven years of marriage, Section 80 BNS cannot be applied merely on the ground that there was a dowry-related dispute.
“…and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband…”
The next requirement is that the woman must have been subjected to cruelty or harassment by her husband or a relative of her husband.
The cruelty or harassment must not be unrelated to dowry. It must have a specific connection with the demand for dowry. Thus, merely proving that the woman was treated badly by her husband or in-laws is not, by itself, sufficient to establish dowry death.
“…for, or in connection with, any demand for dowry…”
This is a crucial part of Section 80. The cruelty or harassment must have been for or in connection with a demand for dowry.
For example, if the husband or his family repeatedly harasses a woman because her family has not provided additional money, property, a vehicle, or another valuable item demanded in connection with the marriage, and she subsequently dies in circumstances covered by Section 80, the requirement of dowry-related cruelty or harassment may be satisfied.
The prosecution therefore has to establish a connection between the dowry demand and the cruelty or harassment suffered by the woman.
Meaning of “Soon Before Her Death”
The expression “soon before her death” does not necessarily mean immediately before her death or on the same day. It requires a proximate and live connection between the dowry-related cruelty or harassment and the death.
The important question is whether the cruelty or harassment relating to dowry was sufficiently close to the death so as to establish a connection between the two events. If the alleged harassment occurred long before the death and there is no continuing or proximate connection, the requirement of “soon before her death” may not be satisfied.
Thus, the law does not prescribe a fixed number of days for the expression “soon before.” Its meaning depends upon the facts and circumstances of each case.
Deeming Provision
“…such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.”
Once all the statutory requirements of Section 80 are established, the death is legally treated as a “dowry death.” The husband or relative who subjected the woman to the relevant dowry-related cruelty or harassment is then deemed to have caused her death.
This is a statutory deeming provision. It does not mean that the prosecution can completely ignore the ingredients of the offence. The essential conditions prescribed by Section 80 must first be established.
Section 80(2): Punishment for Dowry Death
“Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
Section 80(2) prescribes a minimum punishment of seven years’ imprisonment for committing dowry death. The punishment may extend to imprisonment for life.
Therefore, the court cannot impose imprisonment of less than seven years for an offence under Section 80, subject to the applicable law concerning sentencing.
Classification of the Offence – Section 80 BNS, 2023
| Classification | Meaning |
|---|---|
| Cognizable | Police can register the case and investigate it without requiring prior permission from a Magistrate. |
| Non-Bailable | Bail is not available as a matter of right. The accused may apply for bail, but the competent court decides whether bail should be granted according to law. |
| Court of Session | The offence is triable by the Court of Session, which conducts the trial after the case is committed to it in accordance with law. |
Essential Legal Requirements of Section 80
For Section 80 to apply, the prosecution generally needs to establish that the woman died within seven years of marriage, that the death was caused by burns, bodily injury, or occurred otherwise than under normal circumstances, that soon before her death she was subjected to cruelty or harassment, that such cruelty or harassment was committed by her husband or a relative of her husband, and that the cruelty or harassment was for or in connection with a demand for dowry.
When these requirements are established, the death is legally treated as a dowry death, and the husband or relative concerned is deemed to have caused the death. The punishment under Section 80 is imprisonment of not less than seven years, which may extend to imprisonment for life.
Presumption of Dowry Death under Section 118 of BSA, 2023
- Connection with Dowry: The main requirement of Section 80 BNS, 2023 is that the woman’s death must be connected with cruelty or harassment relating to a demand for dowry.
- Death Within Seven Years: The prosecution must establish that the woman died within seven years of her marriage and that her death was caused by burns, bodily injury, or occurred otherwise than under normal circumstances.
- Cruelty or Harassment: It must be shown that soon before her death, the woman was subjected to cruelty or harassment by her husband or a relative of her husband.
- Dowry Connection: The cruelty or harassment must have been for or in connection with a demand for dowry.
- Presumption under Section 118 BSA: Once these essential facts are established by the prosecution, Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 requires the Court to presume that the person concerned caused the dowry death.
- Presumption Does Not Arise Automatically: The presumption does not arise merely because a married woman dies within seven years of marriage. The prosecution must first establish the essential ingredients of dowry death prescribed under Section 80 BNS.
Interpretation of the Word “Dowry” – Pawan Kumar v. State of Haryana, AIR 1998 SC 958,
The Supreme Court explained that the existence of a formal agreement for dowry is not essential for establishing an offence relating to dowry. Whether an agreement existed has to be determined from the facts and circumstances of each case. Therefore, the argument that a person can be convicted only when there is a prior agreement regarding dowry was held to be incorrect and inconsistent with the object and purpose of the Dowry Prohibition Act, 1961.
The meaning of “dowry” under Section 2 of the Dowry Prohibition Act has to be understood along with the other provisions of the Act, particularly Section 3, which deals with giving or taking dowry, and Section 4, which deals with demanding dowry. These provisions show that a demand for dowry itself can constitute an offence when the other required ingredients are satisfied.
The Court further observed that repeated demands for articles such as a television or scooter, whether made from the bride or her parents after marriage, can still be considered to be “in connection with the marriage.” Therefore, such demands may amount to a demand for dowry within the meaning of the law relating to dowry death, now covered by Section 80 of the Bharatiya Nyaya Sanhita, 2023.
The Supreme Court noted that in the case before it, shortly after the marriage, demands for a scooter and refrigerator were made. When these demands were not fulfilled, the woman was subjected to repeated taunts and maltreatment. The Court held that such demands could not be treated as unrelated to the marriage. The evidence therefore established a demand for dowry connected with the marriage, bringing the conduct within the scope of Section 2 of the Dowry Prohibition Act, 1961 and the offence of dowry death under the law then contained in Section 304B of the IPC, corresponding to Section 80 BNS, 2023.
Dowry as Consideration for Marriage – State of H.P. v. Nikku Ram, AIR 1996 SC 67
The Supreme Court began its judgment with the expression “Dowry, dowry and dowry” to highlight the seriousness and continuing nature of dowry demands. The Court explained that such demands may arise at three different stages: before the marriage, at the time of marriage, and even after the marriage. Since greed for dowry may continue to increase, repeated demands can result in harassment and torture of the woman, sometimes leading to suicide or even murder.
The Supreme Court further explained that although the definition of dowry refers to “property or valuable security given or agreed to be given,” a demand made after marriage may also fall within the concept of dowry. This is because an implied understanding or agreement can be inferred from the circumstances. Therefore, property or valuable security demanded even after the marriage may still be regarded as something connected with the consideration for the marriage, where the demand is founded upon the marital relationship.
The Court observed that when the Dowry Prohibition Act, 1961 was enacted, the legislature was conscious of the fact that dowry demands are not necessarily confined to the period before or at the time of marriage. In many cases, such demands continue after the marriage has already taken place. Therefore, a post-marriage demand, when it is connected with the marriage and arises because of the marriage relationship, can also come within the meaning and purpose of the law relating to dowry.
Thus, the important principle emerging from the case is that a demand does not cease to be dowry merely because it is made after the marriage. What is important is whether the demand has a sufficient connection with the marriage and is made as part of the consideration or understanding associated with the marriage.
Presumption under Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 – Baijnath v. State of Madhya Pradesh, (2017) 1 SCC 101
The Supreme Court explained the relationship between the provisions dealing with dowry death, dowry and the statutory presumption. The Court, while interpreting the deeming provision relating to dowry death, emphasized that Section 80 of the Bharatiya Nyaya Sanhita, 2023, Section 2 of the Dowry Prohibition Act, 1961, and Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 must be read together.
The Court held that the initial burden lies on the prosecution to establish, through clear, reliable and convincing evidence, the essential ingredients required to constitute dowry death. The statutory presumption under Section 118 does not arise automatically merely because a woman has died in circumstances covered by the provision.
In particular, the prosecution must establish that the woman was subjected to cruelty or harassment by her husband, relative of her husband, or the person charged, for or in connection with a demand for dowry, and that such conduct occurred soon before her death. Proof of this cruelty or harassment is an essential condition for invoking the statutory presumption.
Therefore, proof of cruelty or harassment is the sine qua non for raising the presumption under Section 118. If the prosecution is unable to establish this foundational fact through cogent, consistent and convincing evidence, the accused cannot be convicted merely by relying upon the statutory presumption.
The Supreme Court thus made it clear that the presumption under Section 118 assists the prosecution only after the foundational ingredients of dowry death have been proved. It cannot be used as a substitute for proving the essential facts of the offence.
Test of Proximity – Keshab Chandra Pandey v. State, (1995) CriLJ 174 (Ori)
The Orissa High Court considered whether there was a sufficiently close connection between the alleged dowry-related cruelty and the woman’s death.
The accused had married the deceased in January 1989. Differences arose between the couple because of the non-fulfilment of dowry demands made at the time of marriage. In June 1989, the accused assaulted the deceased with an iron rod, following which she went to live with her parents.
In January 1990, after intervention and mediation by well-wishers, the deceased returned to her husband’s home. Later, in March 1991, the accused left her at her parental home. Approximately two weeks later, she returned to the accused’s house, and two days after her return, she died.
However, there was no convincing evidence to establish that the deceased had been subjected to cruelty or harassment by the accused after her return to the matrimonial home in January 1990. The prosecution argued that the assault with the iron rod in June 1989 would have left a lasting psychological impact on the deceased.
The Court did not accept this argument. It observed that if the earlier assault had continued to affect the deceased to such an extent, it was difficult to explain why she had waited for nearly two years, particularly after reconciliation with her husband, before the alleged consequences arose.
The Court therefore concluded that there was no sufficient or proximate connection between the earlier dowry-related cruelty and the death. The earlier incident, being too remote from the death and unsupported by evidence of continuing cruelty or harassment, could not satisfy the requirement of “soon before her death.”
Accordingly, the Orissa High Court acquitted the accused, emphasizing that for establishing dowry death, there must be a proximate and continuing link between the dowry-related cruelty or harassment and the woman’s death. Mere proof of an old incident of cruelty is not sufficient when there is no evidence showing a live connection with the death.
Section 81 – Cohabitation Caused by a Man Deceitfully Inducing Belief of Lawful Marriage
Section 81 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with a specific form of deception where a man makes a woman believe that she is lawfully married to him, even though no valid marriage exists, and because of that belief, she agrees to cohabit or have sexual intercourse with him. The provision protects women from being induced into a marital relationship or sexual relationship through a false belief regarding the legal status of marriage.
Meaning and Scope of Section 81
“Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him…”
The offence begins with deceitful conduct by the man. The woman must not actually be lawfully married to him, but because of the deception, she is made to believe that a valid marriage exists between them.
The word “deceit” is important. There must be some intentional act or representation by which the woman is led to believe that she has become his lawful wife. The provision therefore focuses on a false belief regarding the existence of a lawful marriage, rather than merely on a failed promise to marry.
For example, if a man knowingly represents to a woman that a valid marriage has taken place when, in law, no such marriage exists, and she accepts that representation as true, the first requirement of Section 81 may be satisfied.
Belief of Lawful Marriage
“…to believe that she is lawfully married to him…”
The deception must relate specifically to the woman’s belief that she is lawfully married to the man. It is therefore not enough merely to show that the man lied about some unrelated matter.
The woman must actually be induced to believe that she has the legal status of his wife. The offence is concerned with a situation where the woman acts on the belief that a valid marital relationship exists.
The provision uses the expression “lawfully married”, which means that the marriage must be legally valid. If no lawful marriage exists but the woman is deliberately made to believe that one does exist, Section 81 can apply if the remaining requirements are fulfilled.
Cohabitation or Sexual Intercourse Based on That Belief
“…and to cohabit or have sexual intercourse with him in that belief…”
This is another essential part of the offence. The deception must actually cause the woman to cohabit with the man or have sexual intercourse with him because she believes that she is lawfully married to him.
The expression “in that belief” creates an important connection between the deception and the woman’s conduct. It means that her decision to live with the man or engage in sexual intercourse must be influenced by her belief that she is legally married to him.
Therefore, merely proving that the man falsely claimed to be married to the woman is not sufficient by itself. The prosecution must establish that the deception resulted in her cohabitation or sexual intercourse under the belief of lawful marriage.
Importance of Deceit and Causation
Section 81 requires a clear connection between deceit, belief and conduct. In simple terms, the sequence contemplated by the provision is that the man deceives the woman → she believes that she is lawfully married to him → because of that belief, she cohabits with him or has sexual intercourse with him.
If this causal connection is absent, the ingredients of Section 81 may not be established.
Punishment under Section 81
“shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Section 81 prescribes imprisonment for a term that may extend to ten years. The imprisonment may be of either description, meaning it may be rigorous or simple imprisonment, as permitted by law.
In addition to imprisonment, the offender is also liable to fine. Thus, the court may impose both imprisonment and fine in accordance with the circumstances of the case and the applicable sentencing provisions.
Classification of the Offence
The offence under Section 81 BNS is classified as non-cognizable, non-bailable and triable by a Magistrate of the First Class.
| Classification | Meaning |
|---|---|
| Non-Cognizable | The police cannot ordinarily arrest the accused or investigate the offence without the order of a Magistrate, subject to the applicable provisions of criminal procedure. |
| Non-Bailable | Bail is not an automatic right. The accused may apply for bail, but its grant depends upon the discretion of the competent court and the applicable law. |
| Magistrate of the First Class | The offence is triable by a Magistrate of the First Class having jurisdiction over the case. |
Deception Must Be Proved – Moideenkutty Haji and Others v. Kunhikoya and Others, AIR 1987 Ker 184
The Court held that deception is an essential requirement for attracting the offence under Section 493 of the IPC, corresponding to Section 81 of the Bharatiya Nyaya Sanhita, 2023.
In that case, it was alleged that although the parties were not legally married, they had been having sexual relations during late hours of the night for a considerable period. The allegation was primarily based on a promise by the man to marry the woman in the future. It was further alleged that at one point they went together for registration of their marriage, but the man left without completing the marriage. Even after this incident, the woman continued to voluntarily maintain a relationship with him.
The Court held that these circumstances, by themselves, did not satisfy the requirements of Section 493 IPC. A mere promise to marry in the future, or the existence of a continuing relationship, cannot automatically establish that the woman was deceitfully made to believe that she was already lawfully married to the man.
Therefore, for Section 81 BNS to apply, the prosecution must establish actual deception and the resulting belief of lawful marriage. Mere sexual relations or a promise of future marriage, without proof that the woman was deceived into believing that a lawful marriage had already taken place, is not sufficient to constitute the offence.
Settlement Between Husband and Wife Is Not a Valid Ground – Arun Singh v. State of U.P., AIR 2020 SC 1758
The Supreme Court reiterated that a settlement or compromise between the victim and the accused cannot, by itself, be a valid basis for quashing an FIR or chargesheet when the alleged offences are of a nature that affects society at large rather than being purely private disputes.
The Court emphasized that criminal offences having a serious impact on society cannot ordinarily be treated as merely personal matters between the parties. Therefore, even if the husband and wife subsequently reach a settlement or decide to resolve their differences, such settlement does not automatically extinguish the criminal liability arising from an offence against society.
Section 82 – Marrying Again During Lifetime of Husband or Wife
Section 82 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offence commonly known as bigamy. It applies where a person, while having a living husband or wife, contracts another marriage in circumstances where the subsequent marriage is legally void because the first marriage is still subsisting.
The provision contains two different levels of liability. Section 82(1) deals with the basic offence of marrying again during the lifetime of a husband or wife, whereas Section 82(2) provides a higher punishment where the person deliberately conceals the earlier marriage from the person with whom the subsequent marriage is contracted.
Section 82(1) – Marrying Again During the Lifetime of Husband or Wife
“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…”
The basic requirement under Section 82(1) is that the accused must already have a husband or wife living at the time of the second marriage.
The provision does not punish every relationship entered into during the subsistence of a marriage. It specifically concerns a second marriage which is void because the first husband or wife is still alive.
Thus, there must be a legally recognizable first marriage, the first spouse must be living, and the accused must subsequently contract another marriage which becomes void because of the continuing existence of the first marriage.
For example, if A is legally married to B and B is still alive, and A subsequently contracts another marriage with C in circumstances where the law makes that second marriage void because of the subsisting first marriage, A may attract Section 82(1).
The validity of the second marriage is therefore important. The prosecution must establish that the requirements of the offence are fulfilled and that the subsequent marriage is one which is legally void on account of the subsistence of the earlier marriage.
Punishment under Section 82(1)
“…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 person convicted under Section 82(1) may be punished with imprisonment of either description for a term extending up to seven years and may also be required to pay a fine.
“Imprisonment of either description” means that the court may award rigorous imprisonment or simple imprisonment, according to the applicable law and circumstances of the case.
Exception to Section 82(1)
Section 82(1) contains an important exception. The provision does not apply in two specified situations.
Marriage Declared Void by a Competent Court
“This sub-section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction…”
If the person’s earlier marriage has already been declared void by a court having competent jurisdiction, the person will not be liable under Section 82(1) merely because he or she subsequently contracts another marriage.
The reason is that a marriage which has been judicially declared void does not continue to operate as a valid subsisting marriage in the manner contemplated by this provision.
For example, if a competent court has declared A’s marriage with B void, A cannot ordinarily be prosecuted under Section 82(1) merely because A subsequently marries C, on the ground that B was still alive.
Seven-Year Absence Exception
The second part of the exception deals with a situation where the former husband or wife has been continuously absent for seven years and has not been heard of as being alive during that period.
“…nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time…”
This exception applies where the former spouse has been continuously absent for seven years and the person contracting the subsequent marriage has not heard anything indicating that the former spouse is alive during that period.
The requirement is not simply that the spouse has been away for seven years. The statutory conditions concerning continuous absence and the absence of information that the spouse is alive must be satisfied.
Duty to Disclose the Real Facts
“…provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
Even where the seven-year absence exception applies, the person intending to marry again has an important duty. Before entering into the subsequent marriage, he or she must inform the prospective spouse about the actual state of facts, to the extent known to him or her.
Therefore, the exception is not intended to permit a person to deliberately hide information about the earlier spouse. The prospective spouse must be informed of the relevant circumstances before the subsequent marriage takes place.
Section 82(2) – Concealment of Previous Marriage
“Whoever commits the offence under sub-section (1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage…”
Section 82(2) deals with a more serious situation. It applies where a person commits the offence under Section 82(1) and, at the same time, conceals the existence of the former marriage from the person with whom the subsequent marriage is contracted.
The important element here is concealment. The accused must have deliberately kept the fact of the earlier marriage hidden from the person entering into the subsequent marriage.
For example, if A is already married to B but intentionally tells C that A has never been married and then marries C while concealing the earlier marriage, Section 82(2) may apply, provided the other ingredients of the offence are established.
Thus, Section 82(2) is not merely concerned with the existence of two marriages. It specifically addresses the additional wrongdoing of hiding the first marriage from the second spouse.
Punishment under Section 82(2)
“…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 punishment under Section 82(2) is more severe than under Section 82(1). The offender may be punished with imprisonment of either description for a term extending up to ten years, along with fine.
The enhanced punishment reflects the additional seriousness of contracting the subsequent marriage while concealing the existence of the earlier marriage from the person being married.
Essential Ingredients of Section 82
For Section 82(1), the prosecution essentially has to establish the existence of a subsisting marriage, that the husband or wife from that marriage was living at the time of the subsequent marriage, that the accused contracted another marriage, and that the subsequent marriage was void because it was contracted during the lifetime of the existing spouse.
For Section 82(2), the ingredients of Section 82(1) must first be established, along with the additional fact that the accused concealed the existence of the former marriage from the person with whom the subsequent marriage was contracted.
Classification of the Offence
| Provision | Cognizability | Bail | Trial by |
|---|---|---|---|
| Section 82(1) BNS | Non-Cognizable | Bailable | Magistrate of the First Class |
| Section 82(2) BNS | Non-Cognizable | Bailable | Magistrate of the First Class |
Meaning of the Classification
Non-Cognizable: The offence is non-cognizable, meaning the police do not have the same power of arrest without warrant as they have in a cognizable offence. Investigation of a non-cognizable offence is subject to the applicable procedural requirements.
Bailable: The offence is bailable, meaning the accused has a right to bail subject to the conditions prescribed by law.
Magistrate of the First Class: The offence is triable by a Magistrate of the First Class having jurisdiction over the matter.
Subsistence of First Marriage Even After Conversion – Sarla Mudgal v. Union of India, AIR 1995 SC 1531
The Supreme Court clarified that conversion of one spouse to another religion does not automatically dissolve an existing marriage. The Court laid down important principles regarding the continuation of the first marriage after conversion.
Conversion Does Not Dissolve the Existing Marriage
The Supreme Court held that when a marriage has been validly solemnised under a particular personal law, it cannot be treated as dissolved merely because one of the spouses subsequently converts to another religion and seeks to rely upon a different personal law.
Such an approach would be contrary to the principles of justice, equity and good conscience. Once the parties enter into a valid marriage under Hindu law, they acquire a particular legal status along with certain rights and obligations arising from that marriage. Those rights and obligations cannot be brought to an end merely by the unilateral conversion of one spouse.
Hindu Marriage Continues After Conversion
The Court further clarified that the conversion of a Hindu spouse to another religion does not by itself terminate the Hindu marriage. Under Section 13(1)(ii) of the Hindu Marriage Act, 1955, conversion to another religion is only a ground for seeking divorce; it is not an automatic dissolution of the marriage.
Therefore, unless the existing marriage is legally dissolved in accordance with law, the first marriage continues to subsist even after one spouse converts to another religion.
Consequently, a person cannot use conversion as a means of escaping the existing marital relationship and contracting another marriage while the first marriage is still legally subsisting.
Change of Religion Does Not Dissolve Marriage – Lily Thomas v. Union of India, AIR 2000 SC 1650
The Supreme Court was asked to reconsider the decision in Sarla Mudgal v. Union of India. The review petition argued that the earlier judgment was inconsistent with the fundamental rights relating to life and personal liberty and freedom of religion, particularly under Articles 20, 21, 25 and 26 of the Constitution.
The Supreme Court, however, found no sufficient ground for reviewing its earlier decision and reaffirmed the principles laid down in Sarla Mudgal.
The Court made it clear that conversion from Hinduism to another religion does not automatically terminate or dissolve a marriage that was validly solemnised under the Hindu Marriage Act, 1955. The existing marital relationship continues unless it is legally dissolved in accordance with the applicable law.
Consequently, if a person converts to another religion during the subsistence of a Hindu marriage and then contracts a second marriage while the first spouse is still living, the subsequent marriage is void under Sections 11 and 17 of the Hindu Marriage Act, 1955. Such conduct can also constitute the offence of bigamy, which was punishable under Section 494 of the IPC and is now covered by Section 82 of the Bharatiya Nyaya Sanhita, 2023.
The decision therefore reinforces the principle that conversion cannot be used as a means to escape an existing marriage or to legally justify a second marriage during the lifetime of the first spouse.
Section 83 – Marriage Ceremony Fraudulently Gone Through Without Lawful Marriage
Section 83 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with a situation where a person goes through a marriage ceremony dishonestly or fraudulently even though he knows that the ceremony will not result in a legally valid marriage. The provision is intended to protect a person from being deliberately deceived through a marriage ceremony that has no legal validity.
Meaning and Scope of Section 83
“Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married…”
The provision requires the presence of a dishonest or fraudulent intention. A person must knowingly participate in a ceremony representing it as a marriage, while having the intention to deceive or defraud the other person.
The mere fact that a marriage ceremony was performed is not, by itself, sufficient to attract Section 83. The prosecution must establish that the accused acted dishonestly or fraudulently while going through the ceremony.
The expression “goes through the ceremony of being married” refers to participation in a ceremony which is represented or understood as a marriage ceremony. The provision therefore focuses on the person’s conduct in deliberately undergoing such a ceremony despite knowing that it will not create a lawful marital relationship.
Knowledge That No Lawful Marriage Is Created
“…knowing that he is not thereby lawfully married…”
This is the central requirement of Section 83. The accused must have knowledge that the ceremony does not legally result in a valid marriage.
In other words, the person is aware that, despite going through the ceremony, he will not legally become the spouse of the other person. Even with such knowledge, he nevertheless participates in the ceremony with dishonest or fraudulent intention.
For example, if a man knowingly participates in a purported marriage ceremony while being fully aware that the necessary legal requirements for a valid marriage have not been fulfilled, and he nevertheless represents the ceremony as a genuine marriage to deceive the woman, Section 83 may become applicable, provided the other ingredients are established.
The provision therefore requires both knowledge of the absence of lawful marriage and a dishonest or fraudulent intention in going through the ceremony.
Difference Between Section 82 and Section 83 BNS, 2023
| Basis | Section 82 – Marrying Again During Lifetime of Husband or Wife | Section 83 – Marriage Ceremony Fraudulently Gone Through Without Lawful Marriage |
|---|---|---|
| Main Focus | Deals with second marriage during the lifetime of an existing husband or wife. | Deals with fraudulently going through a marriage ceremony without creating a lawful marriage. |
| Existing Marriage | The accused already has a living husband or wife. | An existing valid marriage is not necessarily required. |
| Nature of Conduct | The person contracts another marriage despite the first marriage continuing to subsist. | The person goes through a marriage ceremony knowing that it will not result in a lawful marriage. |
| Knowledge | The person knows that the first husband or wife is living and the subsequent marriage is void because of the subsisting first marriage. | The person knows that the ceremony does not legally make him married to the other person. |
| Essential Element | Subsistence of the first marriage + subsequent marriage. | Dishonest/fraudulent intention + knowledge that no lawful marriage results. |
| Punishment | Up to 7 years and fine under Section 82(1); up to 10 years and fine where the former marriage is concealed under Section 82(2). | Up to 7 years and fine. |
| Classification | Non-cognizable, bailable, Magistrate of First Class. | Non-cognizable, non-bailable, Magistrate of First Class. |
Punishment under Section 83
“…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 person who commits the offence under Section 83 may be punished with imprisonment for a term extending up to seven years.
The imprisonment may be of either description, which means the court may award simple imprisonment or rigorous imprisonment, as permitted by law.
In addition to imprisonment, the offender is also liable to fine. Therefore, the punishment may consist of imprisonment along with a fine.
Essential Requirements of Section 83
For Section 83 to apply, it must be established that the accused went through a ceremony of being married, that the act was done dishonestly or with fraudulent intention, and that the accused knew that the ceremony did not result in a lawful marriage.
Thus, a mere invalid marriage ceremony is not enough. The prosecution must establish the required fraudulent or dishonest intention and knowledge of the absence of a lawful marriage.
Classification of the Offence
| Classification | Section 83 BNS |
|---|---|
| Cognizable / Non-Cognizable | Non-Cognizable |
| Bailable / Non-Bailable | Non-Bailable |
| Triable by | Magistrate of the First Class |
| Punishment | Imprisonment up to 7 years and fine |
Non-Cognizable
Section 83 is a non-cognizable offence. This means that the police do not have the same power of arrest without warrant as they have in relation to a cognizable offence. Investigation of a non-cognizable offence is subject to the applicable requirements of criminal procedure.
Non-Bailable
The offence is non-bailable, meaning that bail is not an automatic right of the accused. The accused can apply for bail, but the question of granting bail is determined by the competent court in accordance with law.
Magistrate of the First Class
The offence is triable by a Magistrate of the First Class having jurisdiction over the matter. The case is therefore not ordinarily required to be tried by the Court of Session.
Section 84 – Enticing or Taking Away or Detaining with Criminal Intent a Married Woman
Section 84 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offence of taking, enticing away, concealing, or detaining a married woman with the intention that she may have illicit intercourse with another person. The provision is primarily concerned with the criminal intention behind taking or detaining the woman, rather than merely with her movement or voluntary conduct.
Meaning and Scope of Section 84
“Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man…”
The first requirement is that the woman must be married to another man. The accused must either know that she is someone else’s wife or have sufficient reason to believe that she is married to another man.
The provision therefore does not apply merely because a woman is taken away. The accused must have the required knowledge or reason to believe that she is the wife of another man.
The expressions “knows” and “has reason to believe” ensure that a person cannot escape liability simply by claiming that he had no direct knowledge of the woman’s marital status. If the surrounding circumstances were such that he had reasonable grounds to believe that she was married to another man, the requirement may be satisfied.
Taking Away or Enticing Away
“…takes or entices away any woman…”
The provision covers two forms of conduct: taking away and enticing away.
“Taking away” generally refers to actively causing or facilitating the woman to leave the situation or place where she was living or staying. “Enticing away” involves influencing, persuading, inducing, or encouraging the woman to leave by creating an attraction or inducement.
The important aspect is that the accused must have undertaken the act of taking or enticing the woman with the criminal intention specified in Section 84.
The mere fact that a married woman leaves her husband’s home and goes somewhere with another person does not automatically establish an offence under this section. The required criminal intention must also be proved.
Intention to Have Illicit Intercourse
“…with intent that she may have illicit intercourse with any person…”
This is the central ingredient of Section 84. The taking or enticing away must be accompanied by the intention that the woman should have illicit sexual intercourse with any person.
The prosecution therefore has to establish the intention behind the conduct. It is not sufficient merely to prove that the accused took the woman away from her husband or that she stayed with another person.
The expression “with any person” is also significant. The provision does not necessarily require the accused himself to have sexual intercourse with the woman. The relevant requirement is that the accused acted with the intention that she may have illicit intercourse with any person.
Thus, the offence is complete when the prohibited act of taking or enticing away is accompanied by the required criminal intention, even if the intended illicit intercourse does not ultimately take place.
Concealing or Detaining the Woman
“…or conceals or detains with that intent any such woman…”
Section 84 is not limited to taking or enticing away a married woman. It also covers a situation where a person conceals or detains such a woman with the same intention of facilitating or causing illicit intercourse.
Concealing means keeping the woman hidden or preventing her whereabouts from being known. Detaining means keeping or restraining her from leaving or from returning freely.
However, the concealment or detention must again be accompanied by the specific intention mentioned in the provision. Mere concealment or detention, without the required intention concerning illicit intercourse, would not by itself satisfy Section 84.
Importance of Criminal Intention
The phrase “with intent” makes the mental element particularly important under Section 84. The prosecution must establish that the accused’s conduct was not accidental or innocent but was carried out with the specific purpose contemplated by the provision.
Therefore, the section does not criminalise every interaction between a married woman and another person. What attracts Section 84 is the combination of the woman’s marital status, the accused’s knowledge or reason to believe that she is married, the act of taking, enticing, concealing or detaining her, and the intention that she may have illicit intercourse with any person.
Punishment under Section 84
“…shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Section 84 provides for imprisonment up to two years, or fine, or both imprisonment and fine.
The expression “imprisonment of either description” means that the imprisonment may be simple or rigorous imprisonment, as determined according to law.
The court therefore has the power to impose imprisonment, fine, or both, depending upon the circumstances of the case.
Essential Requirements of Section 84
For Section 84 to apply, it must be established that the woman was the wife of another man, that the accused knew or had reason to believe that she was married, and that he took or enticed her away, or concealed or detained her. In addition, the prosecution must establish that the accused acted with the intention that she may have illicit intercourse with any person.
The criminal intention is particularly important because the mere taking away, voluntary departure, or association of a married woman with another person does not automatically constitute the offence.
Classification of the Offence
| Classification | Section 84 BNS |
|---|---|
| Cognizable / Non-Cognizable | Non-Cognizable |
| Bailable / Non-Bailable | Bailable |
| Triable by | Any Magistrate |
| Punishment | Imprisonment up to 2 years, or fine, or both |
Non-Cognizable
Section 84 is a non-cognizable offence. This means that the police do not have the same power to arrest without warrant as they possess in relation to cognizable offences. Investigation of a non-cognizable offence is subject to the applicable procedural requirements and the order of the competent Magistrate where required.
Bailable
The offence is bailable, meaning that bail is available to the accused as a matter of right, subject to compliance with the applicable legal requirements.
Any Magistrate
The offence is triable by any Magistrate having jurisdiction over the case. It does not require trial exclusively before a Magistrate of the First Class or the Court of Session.
Section 85 – Husband or Relative of Husband Subjecting a Woman to Cruelty
Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offence of cruelty by a husband or a relative of the husband towards a woman. The provision is intended to protect married women from serious physical or mental cruelty within the matrimonial relationship. It must be read along with Section 86 BNS, which specifically defines what constitutes “cruelty” for the purposes of Section 85.
Section 85 – Bare Act Provision
“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”
The provision creates criminal liability when the person committing the cruelty is the husband of the woman or a relative of her husband. Thus, the relationship between the accused and the woman is an important ingredient of the offence.
“Whoever, being the husband or the relative of the husband of a woman…”
This part identifies who can be held liable under Section 85. The accused must either be the woman’s husband or a relative of her husband.
The expression “relative of the husband” generally refers to a person who has a genuine relationship of kinship with the husband. It is not intended to cover every person who happens to be associated with or living in the matrimonial household. The prosecution must establish the required relationship between the accused and the husband.
For example, the husband himself may be prosecuted under Section 85. Similarly, where the required ingredients are established, a relative such as the husband’s parent or sibling may also be prosecuted.
However, a person cannot be made liable merely because he or she is related to the husband. There must also be evidence showing that the particular accused subjected the woman to cruelty.
“…subjects such woman to cruelty…”
This is the central part of Section 85. The accused must have subjected the woman to cruelty.
The term “cruelty” is not left undefined. Section 86 BNS explains the circumstances in which conduct amounts to cruelty for the purpose of Section 85.
Cruelty may involve conduct that is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or mental or physical health.
It also includes harassment where the harassment is intended to coerce the woman or her relatives to meet an unlawful demand for property or valuable security, or where the harassment occurs because of the failure to meet such a demand.
Therefore, cruelty under Section 85 is wider than merely physical violence. It can include serious mental or psychological cruelty, physical cruelty and dowry-related harassment, provided the conduct satisfies the requirements of Section 86.
Cruelty Is Not Limited to Physical Violence
An important aspect of Section 85 is that cruelty does not necessarily require an assault or physical injury.
A woman may be subjected to cruelty through conduct that causes serious mental suffering, humiliation, threats, harassment or other treatment of the nature contemplated by Section 86.
At the same time, every disagreement, argument or ordinary matrimonial dispute cannot automatically be treated as criminal cruelty. The conduct must satisfy the statutory definition and must be established against the particular accused.
Connection with Dowry Demands
Section 85 also covers a specific form of cruelty involving unlawful demands for property or valuable security.
Where the woman is harassed to force her or her relatives to fulfil an unlawful demand for property or valuable security, or where the harassment is connected with their failure to fulfil such a demand, such conduct may constitute cruelty under Section 86 and attract liability under Section 85.
This provision is therefore closely connected with the legal framework dealing with dowry-related harassment and dowry death. However, Section 85 and Section 80 are distinct offences and their respective ingredients must be independently established.
Punishment under Section 85
“…shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”
A person convicted under Section 85 may be punished with imprisonment for a term extending up to three years.
In addition to imprisonment, the offender is also liable to fine. Thus, the punishment may include imprisonment along with a fine.
The provision prescribes a maximum imprisonment of three years and does not provide that every case must necessarily result in three years’ imprisonment. The actual sentence depends upon the facts and circumstances of the case and the applicable sentencing principles.
Relationship Between Section 85 and Section 86 BNS, 2023
| Basis | Section 85 BNS | Section 86 BNS |
|---|---|---|
| Main Purpose | Creates the offence of cruelty by a husband or relative of the husband. | Provides the statutory definition of “cruelty.” |
| Who is Covered? | A husband or relative of the husband who subjects a woman to cruelty. | Defines the type of conduct that can amount to cruelty for Section 85. |
| What It Deals With | Specifies criminal liability and punishment for subjecting a woman to cruelty. | Explains what conduct legally constitutes cruelty. |
| Role in a Case | Establishes the offence and punishment. | Helps determine whether the alleged conduct satisfies the legal meaning of cruelty. |
| Punishment | Imprisonment up to 3 years and fine. | Does not prescribe a separate punishment; it defines cruelty for the purpose of Section 85. |
| Simple Understanding | Section 85 = Offence + Punishment | Section 86 = Meaning/Definition of Cruelty |
Essential Requirements of Section 85
For an offence under Section 85 to be established, the prosecution must show that the accused was the husband or a relative of the husband of the woman and that the accused subjected her to cruelty as understood under Section 86 BNS.
The prosecution must therefore establish the conduct of the particular accused. Mere allegations against the entire family or merely being a relative of the husband are not, by themselves, sufficient to establish criminal liability.
Classification of the Offence
| Classification | Section 85 BNS |
|---|---|
| Cognizable / Non-Cognizable | Cognizable |
| Bailable / Non-Bailable | Non-Bailable |
| Triable by | Magistrate of the First Class |
| Punishment | Imprisonment up to 3 years and fine |
Cognizable
Section 85 is a cognizable offence. This means that the police have the power to register and investigate the case in accordance with the applicable criminal procedure and may exercise the statutory power of arrest without a warrant where legally justified.
Non-Bailable
The offence is non-bailable, meaning that bail is not an automatic right of the accused. The accused can apply for bail, but its grant depends upon the decision of the competent court and the applicable provisions of criminal procedure.
Magistrate of the First Class
The offence is triable by a Magistrate of the First Class having jurisdiction over the matter. It is therefore not an offence exclusively reserved for trial by the Court of Session.
Section 86 – Cruelty Defined
Section 86 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines the term “cruelty” for the purpose of Section 85, which deals with cruelty by a husband or a relative of the husband towards a woman. Section 86 is important because it does not treat every unpleasant or difficult matrimonial situation as criminal cruelty. It specifically identifies the types of conduct that fall within the statutory definition.
Section 86 contains two separate forms of cruelty, covered under clauses (a) and (b).
Section 86 – Bare Act Provision
“For the purposes of section 85, ‘cruelty’ means—”
This opening part makes it clear that the definition given in Section 86 is specifically meant to determine what constitutes cruelty under Section 85. Therefore, when a person is accused of subjecting a woman to cruelty under Section 85, the alleged conduct must fall within either clause (a) or clause (b) of Section 86.
Section 86(a) – Wilful Conduct Causing Serious Harm or Danger
“any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”
Clause (a) covers wilful conduct of such a serious nature that it is likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb or health.
The word “wilful” indicates that the conduct must be deliberate or intentional. The provision is therefore concerned with conduct that is consciously carried out and is sufficiently serious in nature.
The conduct need not actually result in the woman committing suicide or suffering grave physical injury. The statutory test is whether the conduct is of such a nature as is likely to produce such consequences.
For example, continuous and deliberate conduct that creates such severe mental pressure or physical danger that it is likely to drive a woman towards suicide may fall within clause (a), even if she ultimately does not attempt suicide.
Mental or Physical Health
The provision expressly includes both mental and physical health.
This means that cruelty under Section 86(a) is not restricted to physical violence or bodily injury. Conduct causing serious psychological or mental suffering may also fall within the provision where it reaches the level contemplated by the statutory definition.
Therefore, serious mental cruelty can be covered even when there is no visible physical injury.
Grave Injury or Danger to Life, Limb or Health
The expression “grave injury or danger” indicates that the conduct must be sufficiently serious. Ordinary matrimonial disagreements, minor arguments, or everyday differences between spouses do not automatically amount to cruelty under clause (a).
The conduct must be such that it is likely to cause grave injury or danger to the woman’s life, limb or mental or physical health.
Thus, the focus is on the nature and seriousness of the conduct, rather than merely on the fact that the woman was upset or distressed.
Section 86(b) – Cruelty Connected with Unlawful Demands
“harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security…”
Clause (b) deals with harassment connected with an unlawful demand for property or valuable security.
Here, the woman is subjected to harassment with the intention of forcing or pressuring her, or someone related to her, to fulfil an unlawful demand for property or valuable security.
For example, if a husband or his relative repeatedly harasses a woman in order to force her parents to provide additional money, property, a vehicle, or another valuable item, such conduct may fall within clause (b), provided the statutory requirements are established.
The demand must be unlawful. Therefore, the mere existence of a request or demand does not automatically constitute cruelty under this provision.
Harassment Due to Failure to Meet the Demand
“…or is on account of failure by her or any person related to her to meet such demand.”
Clause (b) also covers a situation where the harassment occurs because the woman or someone related to her has failed to fulfil the unlawful demand.
Therefore, the offence is not limited to harassment intended to obtain something in the future. If the woman is harassed because an unlawful demand has already been refused or remains unfulfilled, the conduct may also constitute cruelty.
For instance, if a husband or his relatives demand property from the woman’s family and subsequently subject her to repeated harassment because the family did not fulfil the demand, the conduct may fall within Section 86(b).
Difference Between Section 86(a) and Section 86(b)
| Basis | Section 86(a) | Section 86(b) |
|---|---|---|
| Nature of Conduct | Wilful conduct of a serious nature. | Harassment connected with an unlawful demand. |
| Main Concern | Protection against conduct likely to cause suicide, grave injury or danger to life, limb or health. | Protection against harassment related to unlawful demands for property or valuable security. |
| Mental/Physical Harm | Specifically covers danger to mental or physical health. | Harm is not the defining requirement; the focus is on harassment and unlawful demand. |
| Demand Required? | No specific property demand is necessary. | Yes, the harassment must be connected with an unlawful demand for property or valuable security. |
| Failure to Fulfil Demand | Not an essential element. | Harassment may arise because the woman or her relative failed to meet the unlawful demand. |
| Simple Understanding | Serious wilful conduct causing or likely to cause grave harm or danger. | Harassment connected with an unlawful demand for property or valuable security. |
Concept of Mental Cruelty – K.V. Prakash Babu v. State of Karnataka, AIR 2016 SC 5430,
The Supreme Court observed that mental cruelty is a concept that cannot be defined by applying a single universal standard. Its nature and impact may vary depending upon the social environment, background, circumstances and level of the persons involved.
The Court emphasized that mental cruelty is largely context-dependent and may be perceived differently by different individuals. Therefore, it is difficult to provide an exhaustive or general definition of mental cruelty applicable to every situation.
However, once the relevant facts and circumstances are clearly established, the court can assess whether the particular conduct amounts to mental cruelty. Thus, the determination of mental cruelty depends upon the overall circumstances and established facts of each individual case.
Mental Cruelty as a Necessary Requirement – Gurcharan Singh v. State of Punjab, AIR 2017 SC 74
The Supreme Court held that mental cruelty is an essential requirement for establishing a finding of cruelty against the accused. In other words, before a person can be held liable for cruelty, the evidence must establish conduct that amounts to mental cruelty within the meaning of the law. Mere allegations or ordinary matrimonial disagreements, without establishing the required element of mental cruelty, are not sufficient to sustain a finding of cruelty.
Guidelines Issued by the Supreme Court – Rajesh Sharma and Others v. State of U.P. and Others, AIR 2017 SC 3869
The Supreme Court issued certain directions concerning complaints relating to Section 498A of the IPC, corresponding to the cruelty provisions under the Bharatiya Nyaya Sanhita, 2023.
The Court directed that one or more Family Welfare Committees should be constituted in every district by the District Legal Services Authority, preferably consisting of three members. The constitution and functioning of these committees were to be periodically reviewed, and at least once every year, by the District and Sessions Judge, who is also the Chairman of the District Legal Services Authority.
The Court further directed that every complaint under Section 498A received by the police or the Magistrate should be referred to the appropriate Family Welfare Committee for consideration. The committee could interact with the concerned parties personally, over the telephone, or through any other suitable means of communication.
The committee was required to submit its report to the authority that referred the complaint within one month from the date on which the complaint was received. Until the committee’s report was received, arrest should ordinarily not be made.
The Supreme Court also observed that requiring every family member, particularly those living in other cities or places, to appear personally should generally be avoided. The Trial Court should consider granting exemption from personal appearance or permitting appearance through video conferencing, provided that such arrangements do not adversely affect the progress of the trial.
Important Note
The above directions were subsequently modified by the Supreme Court in Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443. The Court held that the directions in Rajesh Sharma requiring Family Welfare Committees to examine every Section 498A complaint and restricting arrest until their report were not legally sustainable in that form. Therefore, while Rajesh Sharma is an important case in the development of safeguards against misuse of Section 498A, its directions should not be presented as the current mandatory procedure.
Direction Regarding Investigation
In Social Action Forum for Manav Adhikar v. Union of India, Ministry of Law & Justice, AIR 2018 SC 4273, the Supreme Court directed the Director General of Police of every State to ensure that investigating officers handling cases under Section 498A of the IPC receive proper and rigorous training regarding the principles and safeguards laid down by the Supreme Court in Rajesh Sharma v. State of U.P. The objective was to ensure that investigation in cruelty-related cases is conducted in accordance with the legal principles established by the Court.
Jurisdiction
In Rubi v. Anees Ahmad & Others, 2020 (1) ACR 1098, it was observed that the place where the wife takes shelter after leaving her matrimonial home can also have jurisdiction to entertain a complaint alleging commission of an offence under Section 498A IPC, corresponding to the relevant cruelty provision under the Bharatiya Nyaya Sanhita, 2023.
Thus, a wife who leaves the matrimonial home because of alleged cruelty and takes refuge at another place is not necessarily required to file her complaint only at the place where the matrimonial home is situated.
Some Forms of Cruelty Recognised by Courts
Alienating a Child from the Other Parent
The Kerala High Court has recognised that where one parent deliberately distances or alienates a child from the other parent, such conduct may amount to mental cruelty. The conduct can cause significant emotional suffering and damage the relationship between the child and the other parent.
Allegations Affecting the Husband’s Career and Reputation
In Joydeep Majumdar v. Bharti Jaiswal Majumdar, AIR 2021 SC 1165, the Supreme Court observed that false or serious allegations by a wife which adversely affect the husband’s professional career and reputation may, depending upon the facts and circumstances, constitute mental cruelty.
Forcing the Husband to Separate from His Parents
In Narendra v. K. Meena, AIR 2016 SC 4599, the Supreme Court held that compelling a husband to separate from his parents without sufficient or justifiable reason may amount to cruelty. The circumstances and conduct of the parties, however, have to be examined in each individual case.
Wife Working Against the Husband’s Wishes
In Aaqil Jamil and Others v. State of U.P. and Others, 2017 Cri LJ 3239, it was held that the mere fact that a wife works despite the husband’s wishes does not, by itself, constitute cruelty. A spouse’s decision to work cannot automatically be treated as matrimonial cruelty without additional circumstances establishing the ingredients of the offence.
Compelling a Woman to Live at Her Parental Home
In Amar Singh v. Vimla, M.P. High Court, Criminal Revision No. 2376/2020, the Court recognised that forcing a woman to live at her parental home may amount to cruelty, depending upon the circumstances and the manner in which such conduct is carried out. The overall facts of the case must be examined to determine whether the conduct reaches the statutory threshold of cruelty.
Section 87 – Kidnapping, Abducting or Inducing a Woman to Compel Her Marriage, etc.
Section 87 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with serious offences involving the kidnapping, abduction or unlawful inducement of a woman for the purpose of compelling her to marry against her will or forcing or seducing her into illicit sexual intercourse. The provision also covers situations where criminal intimidation, abuse of authority or any other method of compulsion is used to induce a woman to move from one place to another for such a purpose.
The section protects a woman’s freedom of choice in marriage, personal liberty and sexual autonomy.
Section 87 – Bare Act Provision
“Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will…”
This is the first part of Section 87. It applies when a person kidnaps or abducts a woman with the intention that she should be forced to marry someone against her will.
The prosecution must establish not merely that the woman was kidnapped or abducted, but also that the accused had the required intention or knowledge regarding the forced marriage.
The expression “against her will” is important because the provision protects the woman’s freedom to decide whether and whom she wants to marry. If a woman is taken away with the purpose of compelling her to enter into a marriage that she does not want, the offence may be attracted.
“With Intent” or “Knowing It to Be Likely”
The section covers two mental states. The accused may act with the specific intention that the woman will be compelled to marry, or may act while knowing that it is likely that she will be compelled to marry.
Therefore, direct proof that the accused expressly stated an intention to force the woman into marriage is not always necessary. The required intention or knowledge may be established from the conduct, surrounding circumstances and other evidence.
Kidnapping or Abduction for Illicit Intercourse
“…or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse…”
The provision also applies where the woman is kidnapped or abducted for the purpose of forcing or seducing her into illicit sexual intercourse.
Here again, the accused’s mental element is important. The prosecution must establish that the kidnapping or abduction was carried out either with the intention that the woman would be forced or seduced into illicit intercourse, or with knowledge that such a consequence was likely.
The offence therefore covers situations where the unlawful taking or abduction is connected with the intended sexual exploitation of the woman.
The expression “forced or seduced” covers different forms of unlawful influence. “Forced” refers to situations involving coercion or compulsion, whereas “seduced” involves inducing or persuading the woman into illicit sexual conduct.
Punishment
“…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 person convicted under this part of Section 87 may be sentenced to imprisonment for a term extending up to ten years and is also liable to fine.
The expression “imprisonment of either description” means that the imprisonment may be simple or rigorous imprisonment, depending upon the applicable law and the circumstances of the case.
Inducing a Woman Through Criminal Intimidation or Other Compulsion
The second part of Section 87 deals with a different but related form of conduct.
“…and whoever, by means of criminal intimidation as defined in this Sanhita or of abuse of authority or any other method of compulsion, induces any woman to go from any place…”
This part does not require the accused to necessarily kidnap or abduct the woman. Instead, it covers a situation where the accused induces a woman to leave or move from a particular place through unlawful means.
The section specifically recognises criminal intimidation, abuse of authority and any other method of compulsion as means through which such inducement may occur.
Criminal Intimidation
Where threats are used to make the woman move from one place to another, and the remaining requirements of the section are satisfied, such conduct may fall within Section 87.
Abuse of Authority
The provision also covers misuse of a position of authority or influence to compel the woman to go from one place to another for the prohibited purpose.
The expression “any other method of compulsion” makes the provision wider than situations involving only threats. Other coercive methods may also fall within its scope when they are used to induce the woman to move for the prohibited purpose.
Purpose Behind the Inducement
“…with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person…”
The inducement must have a specific purpose. The accused must intend that the woman will be forced or seduced into illicit intercourse with another person, or must know that such a consequence is likely.
Thus, simply persuading or forcing a woman to leave one place does not automatically constitute an offence under this part of Section 87. There must be the required connection between the inducement and the intended illicit intercourse.
The words “with another person” are significant because the provision specifically contemplates a situation where the woman is intended to be forced or seduced into illicit intercourse with a person other than the person who induces her.
Same Punishment
“…shall also be punishable as aforesaid.”
The final part of the provision means that a person who commits the second form of offence is subject to the same punishment prescribed earlier.
Therefore, the person may face imprisonment up to ten years and fine.
Important Elements of Section 87
Section 87 covers two closely related situations. The first involves kidnapping or abduction of a woman with the intention or knowledge that she will be compelled to marry against her will or be forced or seduced into illicit intercourse. The second involves inducing a woman to leave a place through criminal intimidation, abuse of authority or another method of compulsion, with the intention or knowledge that she will be forced or seduced into illicit intercourse with another person.
The prosecution must establish the specific intention or knowledge required by the section. The mere movement of a woman from one place to another, without the prohibited purpose or mental element, is not sufficient by itself.
Section 87 – Kidnapping/Abduction vs. Inducement
| Basis | First Part of Section 87 | Second Part of Section 87 |
|---|---|---|
| Conduct | Kidnapping or abducting a woman. | Inducing a woman to go from any place. |
| Means | Kidnapping or abduction. | Criminal intimidation, abuse of authority or any other method of compulsion. |
| Purpose | Compelling marriage against her will or forcing/seducing her to illicit intercourse. | Forcing or seducing her to illicit intercourse with another person. |
| Mental Element | Intention or knowledge of the prohibited consequence. | Intention or knowledge of the prohibited sexual consequence. |
| Punishment | Up to 10 years and fine. | Up to 10 years and fine. |
Classification of the Offence
| Classification | Section 87 BNS |
|---|---|
| Cognizable / Non-Cognizable | Cognizable |
| Bailable / Non-Bailable | Non-Bailable |
| Triable by | Court of Session |
| Punishment | Imprisonment up to 10 years and fine |
Cognizable
Section 87 is a cognizable offence. The police can register and investigate the offence in accordance with criminal procedure and may exercise the statutory power of arrest without warrant where the legal requirements for arrest are satisfied.
Non-Bailable
The offence is non-bailable, meaning that bail is not available as an automatic right. The accused may apply for bail, but the competent court decides the application in accordance with the applicable law.
Court of Session
The offence is triable by the Court of Session. Therefore, the trial is conducted by the competent Sessions Court in accordance with the prescribed criminal procedure.
Intention is Essential to Constitute the Offence – Moniram Hazarika v. State of Assam, (2004) 5 SCC 120
The Supreme Court held that the intention of the accused is a fundamental element of the offence. The prosecution must establish that the accused intended to compel the woman to marry against her will or to force her into sexual intercourse against her wishes.
The Court clarified that the focus of the provision is on the intention and conduct of the accused. Therefore, the woman’s own intention, consent, willingness, or subsequent conduct is not decisive in determining whether the accused had committed the offence. What matters is whether the accused acted with the specific intention contemplated by the provision.
Purpose of Abduction Must Be Established – Kavita Chandrakant Lakhani v. State of Maharashtra, AIR 2018 SC 2099
The Supreme Court held that the specific purpose behind the abduction must be proved by the prosecution before the accused can be convicted under Section 366 of the IPC, corresponding to Section 87 of the Bharatiya Nyaya Sanhita, 2023.
The Court clarified that merely proving that a woman was kidnapped or abducted is not sufficient to establish the offence. The prosecution must also establish that the abduction was carried out for one of the specific purposes mentioned in the provision, such as compelling the woman to marry against her will or forcing or seducing her to illicit intercourse.
Therefore, where the prosecution fails to establish the required purpose or intention behind the abduction, the accused cannot be held guilty under Section 87 BNS merely on the basis of the fact that an abduction took place.
Quick Revision Table: Sections 80–87 BNS, 2023
| Section | Offence | Core Ingredients / Key Point | Punishment | Classification |
|---|---|---|---|---|
| Section 80 | Dowry Death | Woman dies by burns, bodily injury, or otherwise than under normal circumstances within 7 years of marriage, and soon before her death she was subjected to cruelty/harassment by husband or his relative in connection with dowry demand. | Minimum 7 years, may extend to imprisonment for life | Cognizable, Non-Bailable, Court of Session |
| Section 81 | Cohabitation caused by man deceitfully inducing belief of lawful marriage | A man deceitfully makes a woman believe that she is lawfully married to him and, because of that belief, she cohabits or has sexual intercourse with him. | Up to 10 years + fine | Non-Cognizable, Non-Bailable, Magistrate First Class |
| Section 82(1) | Marrying again during lifetime of husband or wife | A person having a living husband/wife contracts another marriage, where the subsequent marriage is void because of the subsisting first marriage. | Up to 7 years + fine | Non-Cognizable, Bailable, Magistrate First Class |
| Section 82(2) | Bigamy with concealment of former marriage | Person commits the offence under Section 82(1) and conceals the fact of the former marriage from the person with whom the subsequent marriage is contracted. | Up to 10 years + fine | Non-Cognizable, Bailable, Magistrate First Class |
| Section 83 | Marriage ceremony fraudulently gone through without lawful marriage | Person dishonestly or fraudulently goes through a marriage ceremony, knowing that the ceremony does not create a lawful marriage. | Up to 7 years + fine | Non-Cognizable, Non-Bailable, Magistrate First Class |
| Section 84 | Enticing or taking away or detaining a married woman | Taking/enticing away a woman known to be another man’s wife, or concealing/detaining her, with intent that she may have illicit intercourse with any person. | Up to 2 years, or fine, or both | Non-Cognizable, Bailable, Any Magistrate |
| Section 85 | Husband or relative of husband subjecting woman to cruelty | Husband or husband’s relative subjects a woman to cruelty as defined under Section 86. | Up to 3 years + fine | Cognizable, Non-Bailable, Magistrate First Class |
| Section 86 | Cruelty Defined | Defines cruelty: (a) wilful conduct likely to drive woman to suicide or cause grave injury/danger to life, limb or mental/physical health; (b) harassment connected with an unlawful demand for property or valuable security. | No separate punishment; definition for Section 85 | — |
| Section 87 | Kidnapping, abducting or inducing woman to compel her marriage, etc. | Kidnapping/abduction to compel marriage against her will or force/seduce her to illicit intercourse; also covers inducement through criminal intimidation, abuse of authority or other compulsion for illicit intercourse. | Up to 10 years + fine | Cognizable, Non-Bailable, Court of Session |
Important FAQs – Offences Relating to Marriage under BNS, 2023
1. What is the significance of the phrase “soon before her death” in a dowry death case?
“Soon before her death” does not mean that the cruelty or harassment must have occurred immediately before the death. There must be a proximate and live connection between the dowry-related cruelty or harassment and the woman’s death.
2. Is an agreement for dowry necessary to establish a dowry-related offence?
No. The existence of a formal or written agreement for dowry is not always necessary. The circumstances and evidence may establish that a demand for property or valuable security was connected with the marriage.
3. Can a demand for dowry made after marriage be considered a dowry demand?
Yes. A demand made after the marriage may constitute a dowry demand if it has a sufficient connection with the marriage. The timing of the demand alone does not determine whether it is dowry.
4. Does conversion to another religion automatically dissolve an existing marriage?
No. Conversion by one spouse does not by itself dissolve an existing marriage. The existing marriage continues unless it is legally dissolved in accordance with the applicable law.
5. Is every second marriage during the lifetime of a spouse an offence?
Not necessarily. The legal validity of the first marriage, the circumstances of the subsequent marriage and the applicable personal law must be considered. Where the statutory requirements of bigamy are satisfied, the subsequent marriage may attract criminal liability.
6. Is merely performing a marriage ceremony sufficient to establish a legally valid marriage?
No. A marriage must satisfy the applicable legal requirements and essential ceremonies, depending upon the personal law governing the parties. Merely representing a ceremony as a marriage does not necessarily create a lawful marital relationship.
7. Does every matrimonial dispute amount to cruelty?
No. Ordinary disagreements, differences of opinion or routine matrimonial conflicts do not automatically constitute criminal cruelty. The conduct must satisfy the statutory requirements of cruelty and must be established by appropriate evidence.
8. Can mental cruelty exist even when there is no physical violence?
Yes. Cruelty may involve serious mental or psychological suffering. Physical injury is not an indispensable requirement where the conduct otherwise falls within the legal definition of cruelty.
9. Is the consent or conduct of a woman always irrelevant in offences involving her kidnapping or abduction?
The relevance of her consent or conduct depends upon the specific offence and its statutory ingredients. In offences involving kidnapping, abduction or inducement for prohibited purposes, the prosecution must establish the required intention or knowledge of the accused.
10. What is the importance of intention in offences relating to marriage?
Intention is often a crucial element in offences involving deception, abduction, inducement or fraudulent marriage ceremonies. The prosecution may need to establish the accused’s specific intention or knowledge, depending upon the particular offence. Merely proving the underlying act may not always be sufficient.