Bigamy (Section 77 BNS)

Chapter V of the Bharatiya Nyaya Sanhita (BNS) deals with Offences relating to Marriage (Sections 77 to 81). These provisions criminalize certain acts that violate the legal sanctity of marriage or cause harm within marital relationships.

Bigamy:

Bigamy is the act of entering into a marriage with one person while still being legally married to another. The law prohibits bigamy to protect the institution of monogamous marriage.

Provision:

Section 77 of the BNS defines Bigamy (similar to Section 494 of the IPC): "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, shall be punished with imprisonment..."

Explanation: The definition specifies that the marriage must be void because the previous spouse is alive. This refers to legally valid marriages where the first marriage has not been dissolved by divorce or declared void by a competent court, and the previous spouse is living at the time of the second marriage.

Ingredients:

• The accused must have a husband or wife living from a previous legally valid marriage.

• The accused must marry again.

• The second marriage must be void by reason of its taking place during the life of the former spouse.

If the personal law of the parties permits polygamy, the act of marrying again might not be void and thus might not constitute bigamy under this section. However, for most communities in India governed by personal laws like the Hindu Marriage Act, 1955, marriage is monogamous, and a second marriage during the subsistence of the first is void and punishable as bigamy.

The punishment prescribed is imprisonment which may extend to seven years, and fine.

The BNS also has a provision (Section 77(2), similar to Section 495 IPC) for the same offence committed by concealing the fact of the former marriage from the person with whom the subsequent marriage is contracted, which carries enhanced punishment.

Adultery (Section 78 BNS)

Adultery, which was previously a criminal offence under the Indian Penal Code (Section 497), has been treated differently in the Bharatiya Nyaya Sanhita, following a landmark Supreme Court judgment.

Previous Position (IPC):

Under Section 497 of the IPC, adultery was defined as sexual intercourse by a man with the wife of another man, without the consent or connivance of that man, where such sexual intercourse does not amount to rape. Only the man was punishable, not the woman.

Supreme Court Judgment:

In the case of Joseph Shine v. Union of India (2018), the Supreme Court of India struck down Section 497 of the IPC as unconstitutional, holding that it violated Articles 14, 15, and 21 of the Constitution by treating women as the property of their husbands and perpetuating gender stereotypes. The Court decriminalized adultery.

Provision in BNS (Section 78):

Following the Supreme Court's decriminalization of adultery, the Bharatiya Nyaya Sanhita does not include adultery as a criminal offence. Section 78 of the BNS, which corresponds to offences under the IPC related to marriage, primarily deals with fraudulent or deceitful conduct related to marriage.

The marginal note for Section 78 in BNS reads "Cohabitation by deceitful means". This section criminalizes deceitful marriage, which is different from the previous offence of adultery.

Section 78 BNS:

It states: "Whoever, by deceitful means or by making false promise of marriage, has sexual intercourse with a woman, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment..."

This new provision criminalizes the act of having sexual intercourse with a woman by deceit (other than rape), such as by making a false promise of marriage. This is a significant change from the IPC and focuses on deceptive conduct leading to sexual relations, distinct from the concept of adultery as intercourse with a married woman.

This reflects the legislative response to the decriminalization of adultery and a focus on deceit in marital or sexual relationships as a criminal wrong.

Deceitful Marriage (Section 79 BNS)

Section 79 of the BNS deals with the offence of marrying again during the lifetime of the former spouse by deceitful means, which is a form of bigamy where deception is involved.

Provision:

Section 79 of the BNS (similar to Section 495 of the IPC) states: "Whoever commits the offence defined in section 77 having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished..."

Explanation:

This is an aggravated form of Bigamy (defined in Section 77). It applies when a person, already married, marries again while concealing the fact of the existing marriage from the person they marry in the subsequent marriage. The concealment of the former marriage constitutes the deceitful means.

Ingredients:

• Commission of the offence of Bigamy as defined in Section 77 BNS.

• Concealment of the fact of the former marriage from the person with whom the subsequent marriage is contracted.

The punishment for this offence (Section 79(2) BNS) is more severe than for simple bigamy under Section 77, reflecting the added element of deception. It is imprisonment which may extend to ten years, and also fine.

Offences relating to Cruelty by Husband or Relatives

The BNS, like the IPC, includes provisions to address cruelty inflicted upon a married woman by her husband or his relatives, a significant issue affecting women within marital homes.

Cruelty by Husband or Relatives of Husband (Section 84 BNS)

Section 84 of the BNS defines 'cruelty' and provides for the punishment of a husband or his relative who subjects a married woman to such cruelty (similar to Section 498A of the IPC).

Section 84(1) defines 'cruelty' for the purpose of this section:

• 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; or

• 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 or is on account of failure by her or any person related to her to meet such demand.

Section 84(2) prescribes the punishment: "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."

This offence is crucial for providing legal protection to married women against physical or mental harm and harassment related to dowry demands or other unlawful demands within the matrimonial home. It applies to both the husband and his relatives (e.g., mother-in-law, father-in-law, brother-in-law, etc.).

These provisions under the BNS aim to regulate conduct related to marriage, protecting the institution and the individuals within it from specific forms of harm and exploitation.

Unlawful Assembly (Section 141 BNS)

Offences against public tranquility are crimes that disrupt public peace, order, and safety by involving groups of people in unlawful activities. These offences are dealt with in Chapter VIII of the BNS (similar to Chapter VIII of the IPC, dealing with Offences against the Public Tranquility).

Unlawful Assembly:

An unlawful assembly is a gathering of a certain number of people with a common unlawful purpose.

Provision:

Section 141 of the BNS defines Unlawful Assembly (similar to Section 141 of the IPC): "An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is any of the following:..." The section then lists five unlawful common objects:

1. To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant;

2. To resist the execution of any law, or of any legal process;

3. To commit any mischief or criminal trespass, or other offence;

4. By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right;

5. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly if it adopts an unlawful common object.

Membership of Unlawful Assembly

Section 142 of the BNS (similar to Section 142 of the IPC) defines being a member of an unlawful assembly: "Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly."

Simply being present in an unlawful assembly does not necessarily make a person a member. Membership requires knowledge of the facts that make the assembly unlawful and intentionally joining or continuing in it.

Section 143 of the BNS (similar to Section 143 of the IPC) prescribes the punishment for being a member of an unlawful assembly.

The concept of unlawful assembly is crucial as it is often a preliminary stage to more serious offences like rioting.

Rioting (Section 146 BNS)

Rioting is an offence committed by an unlawful assembly when force or violence is used.

Provision:

Section 146 of the BNS defines Rioting (similar to Section 146 of the IPC): "Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."

Ingredients:

• There must be an unlawful assembly (as defined in Section 141 BNS).

• Force or violence must be used by the unlawful assembly or any member thereof.

• The force or violence must be used in prosecution of the common object of the unlawful assembly.

Example: An unlawful assembly of five or more persons gathers with the common object of forcibly taking possession of land. If any member of this assembly uses force or violence to achieve this common object, every member of that assembly becomes guilty of rioting, even if they did not personally use force.

Section 147 of the BNS (similar to Section 147 of the IPC) prescribes punishment for rioting. The BNS also defines and punishes being armed with a deadly weapon while rioting (Section 148 BNS, similar to Section 148 IPC), which is an aggravated form of rioting.

The distinction between unlawful assembly and rioting is the use of force or violence in the latter.

Affray (Section 149 BNS)

Affray is an offence that involves disturbing public peace by fighting in a public place.

Provision:

Section 149 of the BNS defines Affray (similar to Section 159 of the IPC): "When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an "affray"."

Ingredients:

• Two or more persons: There must be at least two people involved.

• Fighting: They must be engaged in a fight.

• In a public place: The fighting must occur in a public place.

• Disturbing the public peace: The fighting must cause a disturbance to the public peace.

Example: Two people fighting on a street, causing onlookers to gather and disrupt the normal flow of traffic. The fighting itself must be in a public place and lead to public disturbance. A private fight between two people in a secluded location would not be an affray.

Section 149(2) BNS (similar to Section 160 IPC) prescribes punishment for committing affray, which is a relatively minor offence compared to rioting or unlawful assembly, focusing on the actual disturbance caused by fighting in public.

Note that while rioting requires an unlawful assembly of five or more persons and the use of force in prosecution of a common object, affray only requires two or more persons fighting in a public place and disturbing peace.

Promoting Enmity between different groups

Promoting disharmony or feelings of enmity between different groups on specified grounds is a serious offence that threatens public tranquility and national integration.

Promoting enmity between groups on grounds of religion, race, place of birth, residence, language, caste or community (Section 153 BNS)

Section 153 of the BNS (similar to Section 153A of the IPC) criminalizes acts that promote enmity between groups.

Section 153(1) states: "Whoever by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, shall be punished..."

Section 153(2) BNS (similar to Section 153A(2) IPC) deals with offences committed in any assembly or procession.

Section 153(3) BNS (similar to Section 153B IPC) penalizes imputations, assertions prejudicial to national integration.

Ingredients:

• Act: Promoting or attempting to promote disharmony, enmity, hatred, or ill-will.

• Means: By words (spoken, written), signs, visible representations, or otherwise.

• Grounds: Based on religion, race, place of birth, residence, language, caste, community, or any other ground.

• Between groups: The promotion of enmity must be between different specified groups.

• Impact: The act must disturb or be likely to disturb the public tranquility OR be prejudicial to the maintenance of harmony.

Example: Giving speeches or publishing writings that incite hatred between religious communities, organizing events that portray a particular caste or community in a derogatory light with intent to create ill-will, making assertions that challenge the unity and integrity of India on religious or regional grounds.

This offence is intended to protect social harmony and prevent the fragmentation of society along religious, ethnic, or other lines, which can lead to violence and disorder.

Conduct conducing to a riot

The BNS includes provisions that penalize acts or omissions that, while not directly constituting rioting, are likely to lead to a riot.

Provision:

Section 150 of the BNS (similar to Section 153 of the IPC) deals with Wantonly giving provocation, with intent to cause riot, if rioting be committed.

Section 151 of the BNS (similar to Section 153 of the IPC) deals with Wantonly giving provocation, with intent to cause riot, if rioting be not committed.

Explanation:

• Wantonly giving provocation: This refers to deliberately and recklessly doing something that is likely to provoke others.

• With intent to cause riot: The act must be done with the specific intention of causing a riot.

• Result: There are two scenarios:

  • If a riot is actually committed in consequence of such provocation (Section 150 BNS).

  • If a riot is not committed, but the provocation was given with intent to cause riot (Section 151 BNS).

Example: Deliberately performing an act or making a statement in a public place known to be sensitive, with the intention of provoking a group to resort to rioting. If a riot ensues, the person is liable under Section 150. If a riot does not ensue, but the intent and provocation were present, they are liable under Section 151.

These sections aim to criminalize preparatory or instigating conduct that deliberately creates a risk of public disorder, even if the full offence of rioting does not materialise in every case. Other sections in this chapter deal with issues like harbouring persons hired for an unlawful assembly (Section 152 BNS), joining or continuing in unlawful assembly when commanded to disperse (Section 145 BNS), etc., all aimed at maintaining public tranquility.