This article has been written by Ms. Ritu Dhingra, a 4th year student of DELHI METROPOLITAN EDUCATION, GGSIPU

Abstract

Marriage, a legally and socially sanctioned union, usually between a man and a woman, together for the whole of life that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partner. It is the state of being husband and wife. It is considered to be of the body as well as mind. It is when a free man and a free woman mutually agree to live together for their joint lives in the union that should exist between husband and wife under a contract signed in accordance with the law. Consent in marriage should be free, and there should be no force or threat behind it. Forcing someone to marry is a crime. When it is vitiated by such dark and evil elements, the whole purpose of a successful marital life is defeated like abduction and forced marriage. These factors defeat the very purpose of marriage and lead to the failure of marital life. In this article we are going to discuss abduction and its legal implications in Hindu Marriages.

Introduction

Everyone has the right to choose who to marry, who to marry or not to marry. A marriage is a forced marriage if a person has not been able to make any of those choices, i.e. if he/she has been subjected to physical coercion to marry, e.g., threats, physical abuse, sexual harassment. The Forced Marriage Unit defines forced marriage as a forced marriage where one or both people do not (or in cases of people with learning disabilities, cannot) consent to the marriage and pressure or abuse is used. It is an appalling and indefensible practice. The pressure put on people to marry against their will can be physical (including threats, actual physical violence, and sexual violence) or emotional and psychological. 

A forced marriage is a marriage that takes place against one’s own will, or a marriage one has agreed to but has not made a decision. “India has become the third most likely country to be coerced into marriage by a British citizen, the latest UK government data reported, according to which Pakistan has continued to report the largest number of such cases”. Women’s experience of abuse often does not end with the pressure to marry. Many women are also subjected to different forms of abuse within the context of their marriage. In order for an offence to be committed the perpetrator must have used violence, threats or any other form of coercion for the purpose of causing another person to engage in a marriage; and he/she knows the victim does not consent to the marriage, or does not reasonably believe that she consents to the marriage (consent must be free and full). It is also a criminal offence to cause a child under the age of 18 to enter a marriage under any circumstances. A forced marriage is a violation of human rights. It is also a form of gender violence, since it usually involves mental abuse, emotional blackmail, and coercion from either the family or society. Forced Marriage is voidable as per Hindu Law- If the complaining party does not give explicit consent for the marriage, a court can void it, even under Hindu Law. 

“According to ancient Hindu literature, subject to divine sanction and social approval, there are various forms of marriages (Brahma, Daiva, Arsha, Gandharva, Asura, etc.). Among them, Brahma marriage is considered to be the most suitable marriage, and it is the most prevalent marriage in today’s Indi, but in a polluted form. One that was not only socially immoral but also morally prohibited was Rakshasa marriage– where the groom forcibly abducts the bride against her will and the almost non-existent will of her kin. 

Pakadwa Vivah

Pakadua Vivah was solemnised at gunpoint or threats to their life and their families. Pakadwa Vivah is an old social problem in Bihar due to the demand for dowry. Girls’ families have been kidnapping suitable youths for forcible marriage. Families often use friends and relatives, and sometimes even hire professional criminals, to carry out abductions for marriages. Many, but more than 3,400 youths were kidnapped for forced marriage, locally known as Pakadwa Vivah in Bihar. Pakadwa Vivah is rampant in Bihar. About 3,405 youths have been kidnapped for forced marriage in the state. One of the local incidents of Bihar recently was of an engineer in a village in Patna hit the national headlines when he refused to keep his newlywed wife since he was abducted and forced to marry at gunpoint. Taking the number of increasing Pakadwa Vivah seriously, the state police has asked all the district Superintendents of Police to be on the alert to check such incidents in the coming marriage season, known as “lagan” beginning this month. 

The latest National Crime Records Bureau (NCRB) annual report has revealed a distressing surge of 4% in crimes against women in India throughout 2022. This includes cases of cruelty by husbands and relatives, abductions, assaults, and rapes. The report highlighted that a significant proportion of crimes against women under the Indian Penal Code (IPC) involved ‘Kidnapping and Abduction of Women’ (19.2%). Concerning trends were observed in major cities like Delhi, Mumbai, and Bengaluru. Delhi recorded 14,158 cases of crimes against women. 

Rights against forced marriages in India

According to the law, both men and women enjoy rights against forced marriages. There is no discrimination among men and women.

Both have all the right to freely choose a partner of their choice and enter into marriage. The Delhi High Court has said the right to choose one’s life partner is a fundamental right.

There are Laws in India that protect you from forced marriage:

• The Prohibition of Child Marriage Act, 2006 (PCMA)

• The Guardians and Wards Act, 1890 (G&WA)

• The Majority Act, 1875

1. The Family Courts Act, 1984 (FCA)
2. Protection of Women from Domestic Violence Act, 2005 (PWDVA)– One can use the PWDVA to prevent child marriages/forced marriages of daughters, as the Act understands forced marriage as a form of domestic violence (Section 3(a) PWDVA).
3. Article 16 of the Universal Declaration of Human Rights– Discrimination against women in marriage-related matters. It further ensures that both men and women have the same right to enter into marriage, the same right to freely choose a spouse and to enter into marriage only with their free and full consent.
4. Article 23 of the International Covenant on Civil and Political Rights 1966-No marriage shall be possible without the free and full consent of the intending spouses.

Legal things can be done if facing forced marriage

• Contract women cell of local police- Contact the Women Cell of the local police department of the city you are in, lodging a written complaint against your own parents for forcing you into a marriage for which you did not give your free consent without undue influence or force.

• File for Domestic Violence under PWDA Act- You can file a complaint for domestic violence under the PWDV Act against any relatives, wherein the Magistrate can pass an ad interim order restraining the respondents from forced marriage. He/she may even give directions to the SHO of the local police station for providing complete protection to the woman in distress (you) and prevent your forced marriage.

• Contact National Commission for Women- You can contact the National Commission for Women and lodge a complaint with them. Their website has detailed information about how they deal with complaints. They operate nation-wide.

• Contact a Lawyer- Forcibly marrying someone is illegal as per Indian Laws. If somebody is forcing you to marry, they are violating your Right to Life and Human Rights under Article 16 of the Human Rights Convention. To restore your Right, you need to connect with a lawyer, who will guide you about how to deal with such situations legally

ABDUCTION under IPC

Abduction and kidnapping are illegal under Indian law, and over 100,000 kidnapping and abduction instances have been reported in India since 2005. People have continued to exploit youngster’s vulnerability by kidnapping, exploiting, and forcing them to commit heinous deeds. Such acts are an affront to citizen’s rights and freedom and must be avoided. The literal meaning of abduction means to seize and take away. The act of making a person go somewhere with you, especially using threats or violence.

Section 362 IPC defines abduction as compelling or inducing any individual by using force (against his/her will) or through any deceitful means (by misleading him/her) to take him or her from one place to another without mandatorily having a specific motive or demand for ransom. Not in itself a crime unless intention to commit other crimes. It may or may not involve specific motive or demand for ransom. State police and law enforcement agencies are responsible for investigating cases of abduction in India. Because abduction is an auxiliary offence, there is no general punishment provided in the IPC. Rather, certain forms of abduction are punished under separate sections of the IPC. Abduction is an ongoing offence since it does not terminate when a person is moved from one location to another, but rather with each transit from one location to another. 

Chapter XVI of IPC contains offences against the human body:

Section 366 in The Indian Penal Code

“Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. It is a Non-bailable, Cognizable and Non- compoundable offence. 

The aforesaid Section requires the prosecution not only to lead evidence to prove kidnapping simpliciter, but also requires them to lead evidence to portray the above mentioned specific intention of the kidnapper. Therefore, in order constitute an offence under Section 366, besides proving the factum of the abduction, the prosecution has to prove that the said abduction was for one of the purposes mentioned in the section.

Essential Ingredients of Section 366 IPC

The Supreme Court observed that an offence under Section 366 IPC would be attracted only when there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. 

In case of Kavita Chandrakant Lakhani v. State of Maharashtra, (2018) 6 SCC 664, decided on 24.04.2018, Hon’ble Judges/Coram: A.K. Sikri and R.K. Agrawal, JJ. Essential ingredients of Section 366 had been laid down as:

1. Kidnapping or abducting any woman
2. Such kidnapping or abducting must be with the intent that the woman may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing that she may be forced or seduced to illicit intercourse.
3. By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place, with the intent that she may be or with knowledge that it is likely that she will be forced or seduced to illicit intercourse with some person.

In the present case, the victim was a minor girl and there is no evidence that the accused enticed or forced her immediately prior to her leaving the house. Victim has stated that she was in love with the accused and she willingly left her parent’s house. She did not state that the accused took her away or she was induced or forced to go with him. The prosecution could not prove the fact that the accused played an active role in her disappearance from the natal home. The statement of the victim reveals that she herself went to the house of the accused and he did not accompany her. The prosecution has failed to discharge its burden of proof. Hence the point for determination is decided in the negative. In result, it is held that the prosecution has failed to prove the case beyond reasonable doubt. Accused held not guilty u/s 366 IPC and was acquitted. Accused is set at liberty forthwith. 

State of Karnataka v. Sureshbabupuk Raj Porra 

The requirements of Section 366 will not apply where a girl, whose age (minor or major) cannot be ascertained and is dubious, left her family home freely to go with the accused without any provocation or allurement on his behalf to get married.

Bhagwati Prasad v. Emperor

In this incident, the victim was taken from the care of her legal guardian and given to another person so that she could be sold and the revenues of the sale could be split between them. The first accused is guilty under Section 366, the Court said, even though the victim was not married nor the subject of illegal relations. 

Abdul v. Emperor

This case established that the accused must take the girl with him in order to win over the section. The Court determined that the perpetrator was not guilty under Section 366 in this case because he had sex with the victim in a field close to her house without intending to take the girl with.

Conclusion

Kidnapping and abduction are dangerous acts which harm the freedom of a person. Section 359 to 369 goes a long way in securing the liberty of people. They give protection to children against kidnapping and abduction. The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.

To overcome these offences, not only do the states need to work together but also a co-task among nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go around the laws, and indulge in these acts. What is required to prevent these offences is hand in hand working of non-governmental organisations and government bodies, and more sensitisation.

Refrences

1. This article was originally written by Arshia Taqi, at safecity. The link for the same is herein https://safecity.in/kidnapping-and-abduction-know-your-rights
2. This article was originally written by Amit Garg, published on October 27, 2022. The link for the same is herein https://blog.ipleaders.in/difference-between-abduction-and-kidnapping/ 
3. Section 366 IPC https://indiankanoon.org/doc/796352/ 
4. This article was originally written by Law Web. The link for the same is herein https://www.lawweb.in/2018/11/what-are-essential-ingredient-off.html
5. STATE v. Md. Safiur Hussain, Session case No-10 of 2021 u/s-366 of IPC https://nalbarijudiciary.gov.in/Judgments%20at%20Glance/judgments_orders/2021/september/civil_judge_cum_asstt_sessions_judge/SESSIONS%2010-2021.pdf  
6. This article was originally written by News click report on 5th Dec, 2023. The link for the same is herein https://www.newsclick.in/crime-against-women-india-4-ncrb-report-2023#:~:text=The%20report%20highlighted%20that%20a,’Rape’%20(7.1%25)
7. This article was originally written by Rights of Women. The link for the same is herein https://www.rightsofwomen.org.uk/forced-marriage-and-the-law 
8. This article was originally written by Adv. Rupa K.N published on ezylegal. The link for the same is herein https://www.ezylegal.in/blogs/penalties-of-abduction-understand-section-366-ipc
9. This article was originally written by legallistify. The link for the same is herein https://www.thebetterindia.com/95657/forced-marriage-right-choose-partner/ 
10. This article was originally written by new Indian express on 4th Feb 2018. The link for the same is herein https://www.newindianexpress.com/nation/2018/feb/04/literally-marriage-at-gun-point-over-3400-grooms-abducted-in-2017-for-pakadwa-vivah-in-bihar-1768251.html