Marriage 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. Here we are going to discuss Section 366 of the Indian Penal Code, which talks about Kidnapping, abducting, or inducing a woman to compel her marriage, etc.
But first, we need to understand the difference between Kidnapping and Abduction to understand Section 366 in a better way.
What is Kidnapping?
It is only committed with regard to a minor, defined as a boy under the age of 16 years, or girl under the age of 18 or a person of unsound mind, or both. The intent of a person is irrelevant in cases of Kidnapping, meaning that regardless of whether or not they had a good reason, they would still be held accountable. It is not a continuous infraction. As soon as the minor is taken out of their guardian’s care, the crime is finished.
What is Abduction?
It is perpetrated against anyone, regardless of age. There are no restrictions on those of a certain age. Force, coercion, or dishonest tactics are used in Abductions. To identify the offence, the intent is crucial. Therefore, a person would only be responsible if there was malice hidden behind the conduct. It’s a persistent offence.
What is Section 366 IPC?
Anyone who kidnaps or abducts a woman with the intention of forcing her to marry someone against her will, or knowing it is likely that she will be forced to marry someone against her will, or with the intent of forcing or seducing her to engage in illicit sexual activity, or knowing it is likely that she will be forced or seduced to engage in illicit sexual activity, shall be punished with imprisonment of either description for a term that may extend to ten years, as well as being subject to a fine. Section 366 is a Non- bailable, Cognizable, and Non-compoundable offence.
What is a Non-bailable offence?
Non-bailable offences are those that are so terrible and heinous that bail is not a right. It is a privilege that may only be given at the discretion of the Court.
The Court may reject granting bail if the accused fails to properly perform the bail bond or if the crime committed by the accused is terrible enough to warrant the death sentence or life imprisonment as punishment.
What is a Non-compoundable offence?
Offences that are not included in the list under Section 320 of the CrPC are non-compoundable. A Non-Compoundable offence has an impact on both the private party and society. Typically, no compromise is allowed while committing a non-compoundable offence. Such an offence cannot be compounded, and the Court lacks the jurisdiction to do so. Following a thorough trial, the defendant is either found not guilty or guilty, depending on the facts given.
What is a Cognizable offence?
A crime is considered to be cognizable if a police officer can carry out punishment without a warrant and open an inquiry without the judge’s approval, in accordance with the original plan or any other legislation in effect at the time.
Points to remember in Section 366 IPC
- Section 366 is not necessary for simple Kidnapping. It only goes into effect when a woman is kidnapped or taken into custody with the intention of forcing her into an unlawful marriage or seducing her into having illicit relations. If such a purpose was not there when the accused seduced the girl, then even a subsequent act of intercourse with the kidnapped or abducted female cannot bring the case within the ambit of Section 366.
- Seduction in this section refers to both recurring unlawful sexual encounters as well as luring someone into engaging in sexual activity for the first time. The fundamental element of seduction is disregarded in the case of a woman who regularly practised the profession of a prostitute, and as a result, the offence under Section 366 cannot be committed in relation to such a woman.
What are the Ingredients of Section 366 IPC?
1) Taking any lady hostage or Kidnapping.
2) Such Kidnapping or Abduction must be done with one of the following intentions: to force the lady to marry someone against her will, or to force or entice her into illegal sexual activity, or knowing that she may be coerced or persuaded into unlawful sexual activity.
3) By coercing any woman to leave any location with the knowledge that she will likely be coerced or enticed into having unlawful sexual relations with someone, whether via criminal intimidation, abuse of authority, or coercion.
- 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 him.
The offence under Section 366 is punishable by a court of session and is cognizable, non-bailable, and non-compoundable. One of the several gender-specific provisions of the Indian Penal Code, Section 366, works to better safeguard women by designating a number of actions as crimes that are punished by law. A proper legal consultation or legal advice should be taken by any woman in such a case.