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Offences relating to marriage: dowry death, bigamy and cruelty

Bharatiya Nyaya Sanhita · Unit II · Topic 11 of 29 · 6 min read

Dowry death and its presumption, deceitful cohabitation, bigamy, fraudulent marriage ceremonies, enticing a married woman, cruelty by husband or relatives, and kidnapping a woman to compel marriage, sections 80 to 87 of the Bharatiya Nyaya Sanhita.

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  1. 1. Dowry death: section 80 (old s.304B IPC)
  2. 2. Deceitful cohabitation: section 81 (old s.493)
  3. 3. Bigamy: section 82 (old ss.494 and 495)
  4. 4. Fraudulent marriage ceremony: section 83 (old s.496)
  5. 5. Enticing or detaining a married woman: section 84 (old s.498)
  6. 6. Cruelty by husband or relatives: sections 85 and 86 (old s.498A)
  7. 7. Kidnapping or abducting a woman to compel marriage: section 87 (old s.366)
  8. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. In the BNS the offences relating to marriage sit in Chapter V with offences against women, in ss.80–87. Dowry death (s.80) and cruelty (ss.85–86) are the two most often set. For dowry death, learn the four ingredients and the presumption under s.118 of the Bharatiya Sakshya Adhiniyam; for cruelty, the two limbs of s.86 and the arrest safeguards in Arnesh Kumar.

1. Dowry death: section 80 (old s.304B IPC)

Where the death of a woman is caused by burns or bodily injury, or occurs otherwise than under normal circumstances, within seven years of her marriage, 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 for, or in connection with, any demand for dowry, the death is a “dowry death” and the husband or relative is deemed to have caused her death (s.80(1)). “Dowry” has the meaning in s.2 of the Dowry Prohibition Act, 1961. Punishment: not less than seven years, extending to life (s.80(2)).

The ingredients:

The presumption. Section 118 of the Bharatiya Sakshya Adhiniyam (old s.113B Evidence Act): when it is shown that soon before her death the woman was subjected by the accused to such cruelty or harassment, the Court shall presume that he caused the dowry death. It is a presumption of law, rebuttable by the accused.

“Soon before”. In Satbir Singh v. State of Haryana, 2021 INSC 301, (2021) 6 SCC 1, the Court held that “soon before” does not mean “immediately before”; there must be a proximate and live link between the cruelty and the death. The Court also cautioned trial courts against mechanical questioning of the accused and asked them to give proper attention to the defence.

Where the woman commits suicide, the husband may also be charged with abetment of suicide (s.108 BNS, old s.306), with the presumption in s.117 BSA (old s.113A) where she was subjected to cruelty within seven years of marriage.

2. Deceitful cohabitation: section 81 (old s.493)

A man who by deceit causes a woman not lawfully married to him to believe that she is, and to cohabit or have intercourse with him in that belief: up to ten years and fine.

3. Bigamy: section 82 (old ss.494 and 495)

Whoever, having a husband or wife living, marries in any case in which the marriage is void because it takes place during the life of that husband or wife: up to seven years and fine (s.82(1)). If he conceals the former marriage from the person whom he marries: up to ten years and fine (s.82(2)).

The ingredients are a first valid marriage, a spouse living, a second marriage duly solemnised, and the second marriage being void because of the first. The second marriage must be performed with the essential ceremonies; a mere living together is not “marrying”.

Exception. The section does not apply where the earlier marriage has been declared void by a competent court, or where the earlier spouse has been continually absent for seven years and not heard of as alive, provided the person informs the new spouse of the facts.

Whether bigamy is an offence depends on personal law, since the second marriage must be void. For Hindus, s.17 of the Hindu Marriage Act, 1955 makes the second marriage void and applies the penal provision. A Muslim man's second marriage is not void, so s.82 does not apply to him. In Sarla Mudgal v. Union of India, 1995 INSC 363, (1995) 3 SCC 635, Hindu husbands converted to Islam to marry again. The Court held that the second marriage was void, since the first Hindu marriage was not dissolved by conversion, and the husbands were liable for bigamy. This was affirmed in Lily Thomas v. Union of India, 2000 INSC 293, (2000) 6 SCC 224.

4. Fraudulent marriage ceremony: section 83 (old s.496)

Whoever dishonestly or fraudulently goes through the ceremony of being married, knowing he is not thereby lawfully married: up to seven years and fine.

5. Enticing or detaining a married woman: section 84 (old s.498)

Whoever takes or entices away any woman whom he knows or has reason to believe to be the wife of another man, with intent that she may have illicit intercourse with any person, or conceals or detains her with that intent: up to two years, or fine, or both. Adultery (old s.497) was struck down in Joseph Shine v. Union of India, 2018 INSC 898, (2019) 3 SCC 39, and is not in the BNS. Section 84 survives in the same gendered form as s.498 IPC, and its validity after Joseph Shine is open to question on the same reasoning, since it treats the wife as the husband's concern.

6. Cruelty by husband or relatives: sections 85 and 86 (old s.498A)

Whoever, being the husband or a relative of the husband of a woman, subjects her to cruelty: up to three years and fine (s.85). “Cruelty” (s.86) means:

Unlike s.80, there is no seven-year limit and no need for death. Limb (b) covers dowry harassment; limb (a) covers serious cruelty for any reason.

Misuse and arrest. In Arnesh Kumar v. State of Bihar, 2014 INSC 463, (2014) 8 SCC 273, the Court noted that s.498A was being used to arrest husbands and elderly relatives as a matter of course. It directed that the police shall not automatically arrest in cases under s.498A or for any offence punishable with up to seven years, but must satisfy themselves of the need under the conditions in s.41 CrPC (now s.35 BNSS), record reasons, and issue a notice of appearance where arrest is not required; magistrates must not authorise detention mechanically. The directions were reiterated in Satender Kumar Antil v. Central Bureau of Investigation, 2022 INSC 690, (2022) 10 SCC 51.

7. Kidnapping or abducting a woman to compel marriage: section 87 (old s.366)

Whoever kidnaps or abducts a woman intending, or knowing it likely, that she will be compelled to marry against her will, or forced or seduced to illicit intercourse: up to ten years and fine. The same punishment applies to inducing a woman, by criminal intimidation, abuse of authority or other compulsion, to go from any place with that intent. Kidnapping and abduction are defined in ss.137 and 138.

Trap. Dowry death (s.80) and cruelty (s.85) are distinct offences and may be charged together. An acquittal under s.80 (for instance, because death occurred after seven years) does not prevent conviction under s.85 if cruelty is proved.

How this is examined

As an essay: “Explain dowry death and the presumption attached to it”, or “Cruelty by husband or relatives: discuss with case law, including the safeguards against misuse.” Short notes: bigamy, Sarla Mudgal, s.87. For dowry death, list the four ingredients, state the BSA presumption, and explain “soon before”.

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