The section contemplates that the offender, a man, by deceit must cause any woman who is not lawfully married to him, and is thus not his lawful wife, to believe that she is lawfuly married to him, and thus he is her lawful husband, and to cohabit or have sexual intercourse with him in that belief.
The man may be married or unmarried, but the woman victim must not be lawfully married to him. The offender man must deceive a woman into the belief that a certain ceremony which he has caused to be performed with her constitutes a valid marriage between him and her and thus the woman is deceived by him to cohabit or have sexual intercourse with him under the belief that he is her lawful husband.
Where the accused man does not by deceit cause the victim to believe that they are lawfully married to each other, but they live like husband and wife perhaps because of the assurance he has given to her that he would maintain her throughout her life, this section is not attracted. Similarly, a man promising a woman that he would marry her and presenting her as his wife before others does not come within the purview of this section.
Where there was no proof that the accused had falsely induced a woman to believe that she was married to him by mere exchange of garlands, and the accused and the woman cohabited, and when she became pregnant the accused promised to marry her shows that he was conscious that no proper marriage between the two had taken place, and so there was no deception on his part.
According to section 198 (1), Code of Criminal Procedure, 1973, no court shall take cognizance of an offence punishable under chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence, and there are certain provisos to it. Where a case against a man started on a complaint made by the woman victim, but during the pendency of the case the woman died, her mother was allowed to continue the case to its logical end.
In Subhransu Sekhar Samantray v. State of Orissa, the Orissa High Court held that the statement of the prosecutrix that she had resisted establishment of sex relations by the accused with her but when he put vermilion on the parting of her hair and declared her as his wife with the assurance to accept her publicly after getting a job she submitted her to sexual intercourse thereafter, is sufficient to constitute an offence under section 493 of cohabitation caused by a man deceitfully inducing a belief of lawful marriage.
The offence under this section is non-cognizable, non-bailable and non- compoundable, and is triable by magistrate of the first class.