Offences Related to Marriage Under the BNS 2023

1. Introduction

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era Indian Penal Code (IPC) of 1860 on July 1, 2024, represents a significant transformation in India’s criminal legal framework. Marriage, as a core social institution in Indian society, receives special attention within this new criminal code. The BNS has retained, modified, and expanded various provisions related to marital offenses, reflecting evolving social norms, constitutional values, and judicial interpretations. This comprehensive overhaul addresses longstanding concerns regarding gender justice, personal autonomy, and family dynamics in the context of marriage. This article analyzes the provisions concerning marriage-related offenses under the BNS, examining their evolution, scope, interpretation, and practical implications within India’s constitutional and international legal commitments.

2. Historical Background and Legal Context

Marriage-related offenses have a complex history in Indian criminal law. The colonial-era Indian Penal Code of 1860 incorporated provisions reflecting Victorian morality and the social values of that period. These included offenses such as bigamy, adultery, and various forms of marriage fraud, many of which were designed to reinforce patriarchal family structures and restrict women’s autonomy.

The post-independence era witnessed gradual reforms through both legislative amendments and judicial interventions. Key developments included:

1. Criminal Law Amendment Act, 1983: Enhanced penalties for dowry-related offenses and introduced the concept of “dowry death” as a distinct crime.
2. Introduction of Section 498A in 1983: Criminalized cruelty by husband or relatives of husband against women.
3. Joseph Shine v. Union of India (2018): The Supreme Court struck down Section 497 of the IPC, decriminalizing adultery as a criminal offense.
4. Independent Thought v. Union of India (2017): Criminalized sexual intercourse with a minor wife, creating an exception to the marital rape exemption for child brides.

The BNS represents the culmination of this evolutionary process, situated within India’s constitutional framework that guarantees equality (Article 14), prohibits discrimination on the basis of sex (Article 15), and protects personal liberty (Article 21). The new code attempts to balance traditional familial values with contemporary notions of individual autonomy, gender equality, and human dignity.

3. Relevant Laws and Regulations

3.1 Key Provisions Under the BNS for Marriage-Related Offenses

The Bharatiya Nyaya Sanhita contains several provisions specifically addressing marriage-related offenses:

1. Section 66 (Sexual Intercourse by Husband Upon His Wife During Separation): This provision criminalizes non-consensual sexual intercourse by a husband with his wife during judicial separation or under a decree of separation. This represents a partial recognition of marital rape, though it falls short of full criminalization.
2. Section 319 (Bigamy): This section, evolved from Section 494 of the IPC, criminalizes the act of marrying again during the lifetime of a spouse. The offense carries imprisonment for up to seven years and a fine. The provision applies to both men and women, though it must be interpreted in light of personal laws that may permit polygamy in certain communities.
3. Section 320 (Marriage Ceremony Fraudulently Gone Through Without Lawful Marriage): This provision, replacing Section 496 of the IPC, criminalizes the act of fraudulently going through a marriage ceremony without lawful marriage, deceiving the other person into believing it to be a valid marriage.
4. Section 334 (Kidnapping or Inducing Child to Compel Marriage): This section specifically addresses the kidnapping or inducing of a minor for the purpose of forced marriage.
5. Section 317 (Dowry Death): This crucial provision deals with deaths of women in suspicious circumstances within seven years of marriage where evidence of cruelty or harassment related to dowry demands exists. It carries a minimum sentence of seven years and can extend to life imprisonment.
6. Section 318 (Cruelty by Husband or Relatives): This comprehensive provision addresses various forms of cruelty by husband or relatives of husband toward a woman, including physical and mental cruelty, harassment related to dowry demands, and conduct that may drive a woman to suicide.
7. Section 246 (Cohabitation Caused by a Man Deceitfully Inducing a Belief of Lawful Marriage): This section criminalizes the deception of a woman into believing she is lawfully married when she is not, leading to cohabitation.
8. Section 74 (Marriage Procured by Force or Deception): This provision addresses marriages procured through force, deception, or fraud, recognizing the need for free and informed consent in marriage.

3.2 Interface with Other Laws

These BNS provisions interface with several other legal frameworks:

1. Prohibition of Child Marriage Act, 2006: Complements the BNS provisions on forced marriage involving minors.
2. Protection of Women from Domestic Violence Act, 2005: Provides civil remedies that complement the criminal provisions in the BNS related to marital cruelty.
3. Dowry Prohibition Act, 1961: Specifically criminalizes the giving, taking, or demanding of dowry, complementing the BNS provisions on dowry death and harassment.
4. Special Marriage Act, 1954: Provides a civil framework for marriage registration that intersects with the criminal provisions on bigamy and marriage fraud.
5. Various Personal Laws: Hindu Marriage Act, 1955; Muslim Personal Law (Shariat) Application Act, 1937; Christian Marriage Act, 1872; and Parsi Marriage and Divorce Act, 1936 establish the legal parameters of valid marriage within different communities, which must be considered when interpreting offenses like bigamy.
6. The Bharatiya Sakshya Adhiniyam (Indian Evidence Act replacement): Establishes evidentiary standards for proving marriage-related offenses, including the crucial presumptions in dowry death cases.

4. Key Judicial Precedents

Several landmark judicial decisions have shaped the legal framework for marriage-related offenses, which will influence the interpretation of the BNS provisions:

1. Joseph Shine v. Union of India (2018): The Supreme Court struck down Section 497 of the IPC (adultery) as unconstitutional, recognizing that it violated women’s dignity by treating them as property of their husbands. This judgment’s principles on autonomy and equality will influence the interpretation of marriage-related provisions in the BNS.
2. Independent Thought v. Union of India (2017): This judgment criminalized sexual intercourse with a minor wife, creating an exception to the marital rape exemption. Its principles will be relevant to interpreting Section 66 of the BNS.
3. Rajesh Sharma v. State of U.P. (2017) and subsequent clarification in Social Action Forum for Manav Adhikar v. Union of India (2018): These judgments addressed concerns about the misuse of Section 498A (cruelty by husband or relatives), establishing guidelines that will likely inform the application of Section 318 of the BNS.
4. Arnesh Kumar v. State of Bihar (2014): Established guidelines for arrest in Section 498A cases, which will influence the procedural aspects of enforcing Section 318 of the BNS.
5. Prakash v. State of Punjab (1992): Clarified the interpretation of “soon before death” in dowry death cases, relevant to Section 317 of the BNS.
6. Reema Aggarwal v. Anupam (2004): Extended the protection of Section 498A to wives of de facto marriages, a principle likely to be applied to Section 318 of the BNS.
7. Shanti v. State of Haryana (1991): Established standards for circumstantial evidence in dowry death cases, which will guide the application of Section 317 of the BNS.

5. Legal Interpretation and Analysis

5.1 Constitutional Dimensions

The BNS provisions on marriage-related offenses must be interpreted in light of constitutional principles:

1. Right to Equality (Article 14): The provisions must be applied equally regardless of gender, religion, or social status. The abandonment of gender-specific language in many provisions reflects this constitutional mandate.
2. Protection Against Discrimination (Article 15): While Article 15(3) permits special provisions for women, the BNS attempts to balance gender-specific protections with neutral language where appropriate.
3. Right to Life and Personal Liberty (Article 21): This has been interpreted by courts to include the right to dignity, privacy, and autonomy in intimate relationships, principles that inform many marriage-related provisions.
4. Freedom of Religion (Articles 25-28): The application of marriage-related provisions must navigate the constitutional protections for religious practices, particularly in relation to personal laws that govern marriage.

5.2 Evolving Interpretations

Several key interpretative trends are evident:

1. Partial Recognition of Marital Rape: Section 66 represents a limited recognition of marital rape during judicial separation, reflecting an evolutionary step rather than a revolutionary change. The exclusion of marital rape within subsisting marriages remains a controversial aspect that courts may address through interpretation.
2. Enhanced Focus on Consent: The provisions increasingly emphasize free and informed consent in marriage, criminalizing deception, force, and fraud more comprehensively.
3. Graduation from Property to Personhood: The provisions reflect a shift from treating women as property within marriage to recognizing their individual personhood and autonomy.
4. Balancing Protection and Agency: The provisions attempt to balance protecting vulnerable spouses (typically women) while respecting their agency and decision-making capacity.

5.3 Procedural Safeguards and Concerns

The application of marriage-related offense provisions raises procedural considerations:

1. Proof and Presumptions: For offenses like dowry death (Section 317), the BNS maintains presumptions that shift the burden of proof once certain conditions are established.
2. Safeguards Against Misuse: Following judicial concerns about potential misuse of cruelty provisions, procedural safeguards have evolved that may apply to Section 318 of the BNS.
3. Complainant-Friendly Procedures: Several procedural aspects, including territorial jurisdiction and evidence collection, have been designed to be more accessible to complainants in marriage-related cases.

6. Comparative Legal Perspectives

6.1 International Standards

The BNS provisions on marriage-related offenses can be evaluated against international standards:

1. Universal Declaration of Human Rights and International Covenant on Civil and Political Rights: These recognize the right to marry with free and full consent, principles reflected in the BNS provisions against forced marriage.
2. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Article 16 specifically addresses discrimination in marriage and family relations. While the BNS advances some CEDAW principles, the limited recognition of marital rape falls short of CEDAW Committee recommendations.
3. UN Declaration on the Elimination of Violence against Women: This identifies violence occurring within the family as a specific concern, reflected in the BNS provisions on marital cruelty.

6.2 Comparative Analysis with Other Jurisdictions

1. United Kingdom: The UK completely criminalized marital rape in R v. R (1992), going beyond the BNS’s limited recognition. The UK’s approach to domestic violence through specialized courts and integrated service provision offers models for implementing the BNS provisions.
2. United States: Various states have developed comprehensive approaches to domestic violence within marriage, including mandatory arrest policies and specialized prosecution units that could inform the implementation of Section 318 of the BNS.
3. South Africa: The Prevention of Family Violence Act and subsequent legislation offer comprehensive protections against domestic violence, with strong procedural protections that could provide lessons for interpreting BNS provisions.
4. Australia: Australia’s federal system has developed coordinated approaches to family violence across jurisdictions, with innovations in risk assessment and management that could inform the implementation of the BNS provisions.

7. Practical Implications and Challenges

7.1 Implementation Challenges

The effective implementation of the BNS provisions faces several challenges:

1. Cultural and Social Barriers: Deep-seated cultural norms regarding marriage, family privacy, and gender roles can impede reporting and prosecution of marriage-related offenses.
2. Accessibility of Justice: Rural-urban disparities, economic barriers, and educational factors affect access to legal remedies for marriage-related offenses.
3. Specialized Training Requirements: Effective implementation requires specialized training for police, prosecutors, and judiciary on the nuanced nature of marriage-related offenses.
4. Evidence Collection: Marriage-related offenses often occur in private spaces, creating evidentiary challenges that require sensitive and specialized investigative approaches.

7.2 Balancing Objectives

The implementation of these provisions must balance several objectives:

1. Deterrence vs. Reconciliation: In many marriage-related cases, the complainant may desire both protection and potential reconciliation, creating tensions in the application of criminal law.
2. Protection vs. Family Integrity: The legal system must navigate concerns for individual protection against violence and abuse while respecting family integrity and cultural values around marriage.
3. Criminal Justice vs. Social Reform: Criminal provisions alone cannot address deeply rooted social issues related to marriage, requiring complementary social and educational initiatives.

7.3 Gender Dimensions

The gender dimensions of marriage-related offenses require specific attention:

1. Gendered Impact: While the BNS adopts more gender-neutral language in some provisions, the reality remains that women are disproportionately affected by marriage-related crimes.
2. Intersectional Vulnerabilities: The effectiveness of the provisions is influenced by intersecting vulnerabilities related to caste, class, religion, and regional factors.
3. Economic Dependencies: Economic dependence often complicates the reporting and prosecution of marriage-related offenses, requiring integrated economic support alongside legal remedies.

8. Recent Developments and Trends

The BNS was passed in December 2023 and came into effect on July 1, 2024, representing a significant legislative development in itself. However, several related trends and developments are noteworthy:

1. Ongoing Debate on Marital Rape: Various petitions challenging the marital rape exemption remain under judicial consideration, which may influence the interpretation of Section 66 of the BNS.
2. Digital Dimensions: Increasing recognition of technology-facilitated abuse within marriages, including digital surveillance, cyberstalking, and image-based abuse.
3. Alternative Dispute Resolution: Growing interest in specialized family dispute resolution mechanisms that complement the criminal justice approach.
4. Integrated Protection Systems: Development of coordinated systems linking legal protections with social support services, shelter homes, and economic empowerment initiatives.
5. Enhanced Recognition of Same-Sex Relationships: Evolving jurisprudence on LGBTQ+ rights following the Supreme Court’s decisions in Navtej Singh Johar v. Union of India (2018) and related cases may eventually impact the interpretation of marriage-related provisions.

9. Recommendations and Future Outlook

Based on this analysis, several recommendations emerge:

1. Comprehensive Training: Systematic training for all criminal justice stakeholders on the new BNS provisions relating to marriage, with sensitivity to gender dynamics and cultural contexts.
2. Integrated Support Services: Development of one-stop crisis centers that provide legal, medical, psychological, and economic support for survivors of marriage-related crimes.
3. Monitoring and Evaluation: Establishment of robust data collection and analysis mechanisms to track the implementation and effectiveness of the marriage-related provisions.
4. Public Awareness: Comprehensive awareness campaigns about marital rights and the criminalization of various forms of marital abuse and fraud.
5. Specialized Courts: Expansion of family courts and specialized courts for marriage-related offenses to ensure sensitive and efficient adjudication.
6. Legislative Review: Consideration of further reforms, particularly regarding comprehensive criminalization of marital rape and enhancing protections for vulnerable spouses.
7. Community Engagement: Engaging community and religious leaders in efforts to prevent marriage-related offenses and promote gender equality within marriage.

10. Conclusion and References

The BNS provisions on marriage-related offenses represent a significant evolution in India’s approach to regulating marriage through criminal law. These provisions reflect the challenging balance between traditional familial values and contemporary notions of individual rights, gender equality, and personal autonomy. While the BNS advances protections in several areas, it also maintains certain traditional elements, particularly in its limited approach to marital rape.

The effectiveness of these provisions will ultimately depend on their interpretation by courts, implementation by law enforcement agencies, and the broader sociocultural context. A nuanced approach that recognizes both the protective function of criminal law and the complex social institution of marriage in Indian society will be essential for realizing the potential of these legal reforms to enhance justice and equality within marriage.

References

1. Bharatiya Nyaya Sanhita, 2023
2. Constitution of India, 1950
3. Indian Penal Code, 1860 (now repealed)
4. Protection of Women from Domestic Violence Act, 2005
5. Dowry Prohibition Act, 1961
6. Prohibition of Child Marriage Act, 2006
7. Special Marriage Act, 1954
8. Hindu Marriage Act, 1955
9. Muslim Personal Law (Shariat) Application Act, 1937
10. Joseph Shine v. Union of India, (2018) 2 SCC 189
11. Independent Thought v. Union of India, (2017) 10 SCC 800
12. Rajesh Sharma v. State of U.P., (2017) 7 SCC 821
13. Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443
14. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
15. Prakash v. State of Punjab, (1992) 4 SCC 212
16. Reema Aggarwal v. Anupam, (2004) 3 SCC 199
17. Shanti v. State of Haryana, (1991) 1 SCC 371
18. Convention on the Elimination of All Forms of Discrimination Against Women
19. Universal Declaration of Human Rights
20. UN Declaration on the Elimination of Violence against Women
21. Ministry of Home Affairs, “The Bharatiya Nyaya Sanhita: A New Era in Criminal Justice,” 2023

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