Marriage is a human phenomenon a discipline of life. It is a social and legal recognition of a relationship. It confers a status giving rise to certain legal implications of vital concern, amongst others, to the disposal of property.
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It gives the right to maintenance, determines inheritance and regulates guardianship matters which are the concern more of civil than of criminal law. The elimination of marriage from human life would be a revolutionary step of a collosal magnitude.
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We have developed a conservatism of outlook which does not allow us to view such prospect with any degree of satisfaction. The significance of marriage is not confined to the ownership and distribution of property, and even communist society finds that in spite of economic reorganisation on a new basis, marriage remains where it was, irrelevant to biology but relevant to law.
The law jealously safeguards the sanctity of marriage viewed in its simplest form, marriage is a sort of monopoly. The right it confers on parties entering into or contracting it is a right in which the rest of human society is excluded from enjoyment; unlike many other rights, it is not a right to be enjoyed in partnership with others, the partnership of marriage being confined to the parties themselves.
The foundation of marriage will disappear if the monopoly is not maintained. The law punishes acts which go to break the monopoly which may terminate with the termination of marriage but not otherwise.
Adultery, bigamy, elopement and mock marriages are violations of the monopoly and they are punished because the sanctity of marriage cannot be permitted to be defiled. The form and extent to which the law goes in dealing with them varies according to the ethical attitude of the people towards them.
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Thus, in many lands adultery is a civil wrong. The attitude towards them is determined by many other factors. Amongst communities in which there is wide disparity of numbers between males and females, custom and law may permit one to have more than one wife or husband as the case may be and such a one may not be guilty of bigamy.
In India man is punished for adultery but not women while both are equally liable in several countries. When exempting women from liability for adultery, the Law Commissioners, who drafted the Code, observed as follows: “Though, we well know that the dearest interest of the human race are closely connected with the chastity of women and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a human man to pause before he determines to punish the infidelity of wives.
The condition of the women of this country is unhappily very different from that of the women of England and France, they are married while still children, they are neglected for other wives while still young. They share the attentions of a husband with several rivals.
To make laws for punishing the inconsistency of a wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law, an evil so deeply rooted in the manners of the people of this country as polygamy we leave it to the slow, but, we trust, the certain operation of education and time.
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But while it exists, while continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law”.
The penal law cannot ignore the personal law of various communities in the country in its application to them. With this background, we may proceed to the definitions or ingredients of the offences relating to marriage and penalties prescribed therefore under the Code.