Section 493 and ‘Belief’ of Marriage

In a recent decision of the Supreme Court, the division Bench has been divided on a very interesting issue of statutory construction, leading to its referral to a larger Bench. The facts before the Court in Ram Chandra Bhagat v. State of Jharkhand, involved section 493 of the Indian Penal Code, and the meaning of the phrase ‘deceitfully inducing a belief of lawful marriage’.

The facts of the case are rather unfortunate. A man and woman cohabited for nine years, and also had two children from that relationship. However, after the nine year period, the woman was turned out of the house. She alleged that the man had assured her that he would marry her and had executed an agreement to that effect. This agreement was disputed by the man, who further argued that the existence of this agreement does not mean that he had induced ‘a belief of marriage’.

The relevant provision, section 493 of the IPC reads-

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. [emphases supplied]

Thus, on the text, there are two major requirements of this section that were arguably not satisfied. (1) the woman should believe that she is lawfully married to the man, and not that she will be married to the man; and (2) that the cohabitation and sexual intercourse be in that belief. There is also an additional requirement that the conduct of the man be deceitful, but the satisfaction of that requirement would depend largely on the answer to the first of the two questions. It may have been arguable however, that even if the section included a belief that she will be lawfully married to him in the future, there is no deceit unless the man actually never intended to marry her.

It was based on the above reasoning that Justice Markandey Katju concluded that the man cannot be convicted under section 493, IPC. He accepts that the accused “has not behaved like a gentleman. He lived with the complainant for nine years and had two children by her, and hence as a decent person he should have married her which he did not do”. However, he bases his decision on the “difference between law and morality”. Especially given that the sole basis of the complainant’s argument was the agreement to marry, and not any ceremonies similar to those resulting in a marriage under section 7(1) of the Hindu Marriages Act, or the Special Marriages Act.*

Justice Gyan Sudha Misra, however, reaches the opposite conclusion. She begins by saying that, “While there is no difficulty in accepting the position that law and morality might stand on a different footing although they are inextricably linked in my perception, yet I agree that legal decision cannot be based purely on morality”. On the belief in the marriage, she says that “although no ceremony of marriage took place between them, but as per social custom prevailing in the District of Lohardaga among the members of the Oraon community, if a young man lives with a young girl in his house for a long period, she is deemed to be his wife which is recognized as marriage”. She also mentions that the voter lists in the area in the early 1980s mentioned them as husband and wife, and also the fact that they had solemnized the birth ceremony of their children.

This conflict brings about a very interesting divide in the approach to section 493. As discussed above, the provision penalises the deceitful inducement of the belief that the woman is lawfully married to the man. The primary allegation of the complainant here was that the accused had promised to marry her. Even Justice Gyan Sudha Misra does not expand the meaning of the section to include promises of marriage. What she does rely on is the fact that the couple conducted themselves as a married couple, or gave the appearance of being married. This is evidenced by their names in the voter lists, and by the solemnization of the birth ceremony of their children. However, the relevance of such evidence is suspect. It is certainly not relevant what impression was given to people other than the complainant. It may be arguable that this evidence is relevant if the complainant’s case is that such conduct gave her the impression that they were lawfully married. However, that cannot be the case if there was a specific agreement to marry, which was entered into after the said voter lists and the birth ceremonies. It may be arguable that she did not understand the terms of the agreement, but that is not something mentioned by Justice Misra. Hence, on the facts as they appear, her interpretation of the provision, with respect, seems wider than that which the provision permits.

None of this is to condone the conduct of the accused here. However, in keeping with the anecdote about the Lord Chancellor of England Sir Thomas More, the Courts should not convict a person because he is a “bad man”, unless the conduct which makes him so also results in him breaking a law of Parliament. Reading the provision as ‘cohabitation or sexual intercourse in a relationship resembling one of marriage’ will not only be a impermissible interpretation, but will also have far-reaching implications for live-in relationships. The decision as to where and how the line is to be drawn must no doubt lie with the Parliament. In the meanwhile, with the matter being referred to a higher Bench, only time will tell what approach the Apex Court chooses to adopt.

* Having casted aspersions in my earlier post on the decision of Justice Katju in Pushpa Vanti, I think it is only fair to express my complete agreement with him here, in resisting the temptation to go beyond what the law penalises in the search for ‘justice’. However, what this further establishes, in keeping with an argument Mihir makes vividly here, is that Justice Katju cannot really be classified as being for or against judicial activism.